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Home My WebLink About2003-1520.Gillis et al.08-05-16 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB# 2003-1520, 2003-1527, 2003-1528, 2003-1532, 2003-1536, 2003-1567, 2003-1825, 2003-1827, 2003-1833, 2003-1834, 2003-1835, 2003-1837, 2003-1843, 2003-1844, 2003-1850 UNION# 2003-0248-0070, 2003-0248-0074, 2003-0248-0067, 2003-0248-0072, 2003-0248-0059, 2003-0248-0060, 2003-0248-0029, 2003-0248-0032, 2003-0248-0039, 2003-0248-0040, 2003-0248-0041, 2003-0248-0043, 2003-0248-0049, 2003-0248-0050, 2003-0248-0056 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Gilliset al.) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFOREVice-Chair Randi H. Abramsky FOR THE UNION Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYER Sean Kearney Senior Counsel Ministry of Government and Consumer Services HEARING August 26, September 20, 2004; January 11, June 21, December 2, 2005; January 24 & 25, February 1, 7, 8, 15 & 16, August 17 & 18, November 1, 2, 6, 7, 15, 21, 22 & 30, December 1, 7, 8, 13, 14 & 18, 2006; April 18, May 1, 2, 16 & 17, June 14, July 12 & 13, September 6 & 7, October 23 & 24, November 22 & 23, 2007. 2 Decision It all began when an inmate at Hamilton Wentworth Detention Centre placed a hard plastic cup inside a sock and swung that cup at a Correctional Officer, striking him in the head. That misguided action led to a series of events which have effectively ruined the careers and lives of numerous Correctional Officers. It led to two criminal investigations and charges, court proceedings, one conviction, as well as numerous disciplinary sanctions including termination. It led to untold stress, financial difficulties and destroyed relationships and marriages. At issue here is whether the Ministry of Correctional Services had just cause to discharge three Correctional Officers, Greg Gillis, Jason Meadows and Rene Beaulieu for excessive use of force. Originally, there were significantly more grievors, but their grievances have been either withdrawn or resolved, leaving the three remaining grievors. Essentially, the Ministry alleges that in retaliation for the inmate?s assault on a fellow Correctional Officer, the grievors used excessive force on the inmate, beating him up in the initial interview room and during the escort to segregation, and then lying and covering up their actions when the matter was investigated by the Ministry. The grievors deny using excessive force and deny any wrongdoing except writing an inadequate Occurrence Report. The grievors, and seven other Correctional Officers, were initially suspended with pay pending investigation, on March 6, 2003. An extensive investigation was conducted by Inspector Bruce Graham of the Correctional Investigation & Security Unit (CISU). He conducted a very thorough investigation. In late May 2003, he presented the findings of the 3 investigation to Hamilton Wentworth Detention Centre Superintendent Bob Thomas. On July 11, 2003, the grievors were discharged. The hearing in this matter spanned over forty hearing dates over a three year period. Facts On July 11, 2003, following an investigation, the grievors were discharged, based on the following allegations: 1.That on October 18, 2002 you used excessive force on inmate Burke by participating in a deliberate attack upon an inmate. 2.That on October 18, 2002 you were grossly negligent in carrying out your roles, responsibilities and duties as a Correctional Officer and Ministry representative in your participating in the excessive use of force used on inmate Burke. 3.That on October 18, 2002, you failed to meet the standards for professional behaviour for Ministry employees as outlined in the Statement of Ethical Principals by your participation in the excessive use of force on inmate Burke. 4.That you failed to comply with the Ministry Policy for Use of Force as outlined in the Adult Institutions Policy and Procedures Manual and Institution Standing Orders by failing in the minimum reporting requirements on the excessive use of force on inmate Burke. 5.Your conduct was unprofessional in that you were dishonest and deceitful in filing your reports and responding to Ministry investigators. 6.That on October 18, 2002, you failed to provide care, custody and control as required of a Correctional Officer and in contravention of the Ministry of Correctional Services Act by the excessive use of force used on inmate Burke. The termination letters, signed by Superintendent Bob Thomas, conclude that ?[a]fter reviewing all the information provided by the Investigation Report, your responses to the allegations, as laid out in the foregoing, it is my decision to dismiss you for cause from employment with the Ontario Public Service, pursuant to Section 22(3) of the Public Service Act. ?? 4 Hamilton Wentworth Detention Centre is a maximum security detention centre which houses approximately 414 male inmates and approximately 118 young male offenders. On October 18, 2002, in the early afternoon, inmate Michael Burke ?cupped? Correctional Officer Smid. He placed a hard plastic cup inside a sock and swung it at the officer, striking him in the head. This resulted in an ?all staff? alert, sending all available correctional officers to unit 5C, where the incident occurred. Between 20 to 30 correctional officers responded to the all staff. In this case, there is a great deal of conflicting testimony. In determining what happened, there are a number of key facts that have influenced my determination of the facts. 1. The first is that the inmate was clearly beaten between the time he arrived in the 5C interview room and his delivery to segregation on October 18, 2002. There is undisputed evidence that the inmate did not have any observable injuries when he was escorted from the 5C day room to the 5C interview room. There is conclusive proof, through photographs taken in segregation, that the grievor was quite badly beaten. He had numerous abrasions to his face, head, neck, shoulders and back. He had a 1 cm laceration on the top of his head. His right was eye bleeding and swollen shut. Photographs of the inmate were taken upon his arrival in segregation, and approximately five hours later at Brantford Jail where he had been transferred. 2. The conviction of Correctional Officer Paul Van Kuren, who was originally a grievor in this proceeding, establishes that he assaulted the inmate in the elevator. There is significant dispute between the parties regarding the scope and impact of this conviction which will be addressed 5 later, but at the minimum, it establishes that Mr. Van Kuren repeatedly punched the inmate while on the elevator. 3. There is an extremely powerful Code of Silence in Corrections. 1. The 5C Interview Room First to arrive at unit 5C in response to the ?all staff? was Correctional Officer Patti Graham, who was working in unit 5B, a youth offender unit, at the time. She testified that Correctional Officer Thomas Randall pointed to inmate Burke in the day room and said, ?that inmate has to leave.? She stated that the inmate was compliant, placed his hands in the air, and then went down on all fours, then down on his stomach. Youth Officer Brian Callahan arrived then and Officer Graham said to the inmate, ?okay, buddy, let?s go.? He stood up and they escorted him, without incident, to the 5C interview room. She did not handcuff him because he was compliant. At the time, she had no idea what had occurred or why he had to leave the unit. The 5C interview room was unoccupied when they arrived and she told the inmate to have a seat, which he did. Then she and Callahan left to find out what was going on, just as other officers were coming in. She stated that there was an ?overwhelming number of staff in the area.? Graham testified that she went to the 5C office and saw Correctional Officer Smid. She asked him what happened and he told her that the inmate had assaulted him. She then turned towards the interview room and said, ?The inmate assaulted staff; he needs to be taken to segregation.? She said it ?loud enough for people to hear me.? No one, however, responded. She then went back to the interview room but because there were too many people there she could not enter or see anything.She left when she saw Operational Manager Liz Coccia arrive. 6 Graham testified that inmate Burke did not have any visible injuries when she saw him in the day room in 5C and escorted him into the interview room. She did not observe that he had any difficulty walking or that he seemed to be in pain of any kind. Exactly what happened in the 5C interview room is in significant dispute. One thing that is not in dispute is that the first Correctional Officer to arrive at the 5C interview room was Greg Gillis. Gillis began work as an unclassified Correctional Officer in 1996 and in May 2001, became a classified officer. He was also a member of ICIT (Institutional Crises Intervention Team), whose members receive special training to deal with hostage and other crisis situations. Gillis testified that he arrived just as the two Youth Officers and the inmate entered the 5C interview room, and the inmate sat on a chair. He did not know the inmate. The two officers then left, leaving him alone with the inmate. He stated that he told the inmate to stand up and asked if there was anything in his pockets. The inmate responded ?no? to the question and began mouthing off at him to ?f--- off? and ?f--- you.? Gillis then took a step inside the room ordered the inmate to stand with his hands against the wall, which he did. The inmate had his hands on the wall and his feet back from the wall, his legs spread apart. Gillis then began to frisk search him, while the inmate continued to curse him, and other officers came into the room. The inmate bragged that he was a ?federal inmate.? In Gillis?s view, the inmate was ?grandstanding? for his fellow inmates. Gillis stated that someone then said, ?He has to be moved from the area.? He could not recall who said this. So when he finished the frisk search, he began to handcuff him for the escort. He had the handcuff in his left hand while his right hand was on the inmate?s right arm to hold him there and be alert for any tensing which could indicate potential movement. He applied the left cuff and then felt the inmate tense up and turn his head. He felt the inmate?s right hand trying to close into a fist, so he used his right leg to buckle the inmate?s left leg to bring him 7 down to place him in a disadvantageous position. To his surprise, they both went down. The inmate hit the floor and he fell on top of the inmate. He told the inmate to ?stop resisting.? By then, numerous other staff had arrived and were assisting in controlling the inmate. Someone else shouted to the inmate to ?stop resisting.? Gillis stated that he used both hands to gain control of the inmate?s left arm and that another officer pulled his right arm behind him and the inmate was physically resisting and yelling. The handcuffs were then secured. He stood up and assisted the inmate to his feet and had control of his left side. Another officer had control of the right side, although he could not say who it was. At that point, Gillis noticed that Operational Manager Rick Singh had arrived. OM Singh spoke to the inmate but he could not recall what was said except that the inmate was being moved out to either 2B or segregation. They then began escorting the inmate out of 5C, but the inmate was not cooperating. He was shuffling his feet, so he turned him around and walked him out backwards. He said the inmate kept swearing and saying they could not move him because he was a federal inmate. Mr. Gillis testified that while in the 5C interview room he did not strike or kick the inmate. Nor did he see ?anyone use an inappropriate level of force.? He could not, however, name one other Correctional Officer present in the 5C interview room. This, he explained, was because he was focused on the inmate. He stated that he did not know, at the time, that the inmate had assaulted officer Smid. On cross-examination, however, he acknowledged that it was ?possible? that he learned about in while in 5C. Correctional Officer Jason Meadows was also in the 5C interview room. Meadows was an unclassified correctional officer who began his employment in July 1997. He had been working in Admitting and Discharge when the ?all staff? alert was issued. He locked up the 8 inmates there and took the elevator to 5C and by then 10 to 15 officers were there. He heard a verbal exchange in the 5C interview room and went in to assist. The inmate was being frisk searched as he made his way around. He stated that he ?wasn?t too sure? but the inmate?s arm came off the wall and the inmate moved away from the wall turning left, so he grabbed his right arm and shoulder in an attempt to bring him to the ground. He said it happened ?fast? and others were helping, including Gillis and Rene Beaulieu. Other officers were holding the inmate?s arms and legs. The inmate was then on his stomach on the floor with his right arm under him. He pulled the inmate?s right arm behind his back and the second cuff was applied. They all then stood up and waited for direction. He did not hold on to the inmate then because ?about six others were holding him.? They then led the inmate out, walking forward, with one Correctional Officer on each arm. OM Singh spoke to him, but he did not hear what was said. The escort then proceeded to the elevator. Meadows stated that he did not strike the inmate or kick him, and he did not witness that occur. He did not know that the inmate had assaulted Smid. He ?believes? that he learned it afterward. Correctional Officer Rene Beaulieu also attended the 5C interview room. Beaulieu, like Meadows, was an unclassified correctional officer. He began his employment in the summer of 2000. When he got to the 5C interview room he asked what happened and was told that the inmate had assaulted a staff member. The inmate was sitting when he arrived, pulled to stand up and faced against the wall for a frisk search. When he was told that he was going to segregation, the inmate came off the wall and turned and began to swear and become agitated. He said the inmate was told to turn around, face forward and he was frisked. The handcuff was about to go on when the inmate moved off the wall, yelling and cursing, and the inmate was taken to the ground. Beaulieu stated that he grabbed the inmate?s right ankle and pulled it straight out, so he would fall forward. He stated that as the inmate went down, the Correctional Officers also went 9 down to control and secure him. He said that the inmate was yelling and swearing, but the handcuffs were applied and the inmate was brought up and walked out of the interview room. He was ?pretty sure? that he walked out forwards. OM Singh stated that they were going to segregation and to take the elevator, and he followed. He did not strike or kick the inmate in the 5C interview room, nor did he see anyone do that. He saw no injuries on the inmate. Three other Correctional Officers provided quite different testimony about what occurred in the 5C interview room. These officers, who I will refer to as Officers ?1?, ?2? and ?3? in an effort to preserve their identity, testified that after the inmate was brought down to the ground he was repeatedly assaulted by Correctional Officers. Officer 1 has significant experience as a Correctional Officer. He was initially suspended pending investigation, and denied any knowledge concerning inappropriate use of force. When it became clear that he would likely lose his job if he continued to fail to cooperate in the investigation, Officer 1 provided details about what he had observed. He told the investigator, and he testified at the hearing, that he entered the 5C interview room and saw the inmate sitting in a chair, facing the doorway. Officer Gillis then instructed the inmate to stand up and place his hands on the wall, which the inmate did. Gillis then frisk searched him and the inmate did not resist. Gillis then applied the restraints to his wrists behind his back, and at that point, officers began saying ?stop resisting? and crowded in, forcing the inmate to the ground. He saw several officers, including Gillis and Correctional Officer Paul Van Kuren, punch the inmate until Operational Manager Liz Coccia arrived and said, ?Okay guys, that?s enough.? Officer 1 then left the room and went to the 5C office to ask if any other inmate had to be removed and if Smid was okay. He saw the restrained inmate being removed from the 5C interview room, being held 10 by Gillis and Van Kuren, with eight to ten officers present. He was 95% sure that the inmate was escorted backwards. He rejoined the escort as they went to the elevator. Officer 2 was also suspended pending investigation. He is a classified correctional officer and has worked in that capacity since 1998. Initially, he did not cooperate with the investigation. During his interview with the investigator, however, he decided to tell what he observed. At the hearing, he testified that he was working in Unit 3C at the time of all staff. He went to 5C by way of the ramp and went into the interview room where he saw the inmate standing at the back of the room. He heard someone ask what the problem was and another officer responded the inmate had assaulted an officer with a cup. The inmate was then brought to the ground, face down and he saw Correctional Officers Jason Meadows and Paul Van Kuren take a ?couple of shots to the inmate?s shoulder.? He also saw a number of kicks to the inmate while he was on the ground. Officers were saying ?stop resisting? and the inmate was saying, ?I?m not resisting.? Handcuffs were applied and the inmate was escorted out. He did not see the inmate resist in the 5C interview room, although he did say that the inmate was ?squirming? while being assaulted on the ground. Officer 2 also saw OM Coccia in the interview room, but could not recall what she said. He also saw OM Singh there. Officer 3 also testified about the 5C interview room. He has been a Correctional Officer since 2001. Like all of the others, he, too, initially took the position that nothing improper occurred. He maintained his silence through his initial Occurrence Report and two addendums. He maintained his silence when interviewed initially by the police. However, during his second interview with the police when he recognized that he might not only lose his job but could be charged with obstruction of justice, he began to tell what he knew. For some reason, Officer 3 was initially missed by Inspector Graham. As a result, he was not suspended along with the 11 other Correctional Officers who were involved. He testified that because he was not suspended, officers started to question whether he had ?ratted? them out and he was treated with suspicion. Upon learning that the police had interviewed Officer 3, Inspector Graham followed with his own interview. At the hearing, he stated that he responded to the ?all staff? and when he arrived he saw the inmate on the floor, on his stomach, with a number of staff on top of him, trying to put the inmate?s hands behind his back. He grabbed the right leg of the inmate. He stated that the inmate was not doing anything on the floor. He was not resisting, just lying there, and the cuffs were applied. He held the inmate?s right leg down, and he got the ?sense? that the inmate was struck a number of times. Officers were saying, ?stop resisting? and the inmate kept saying, ?I?m not resisting.? The inmate was then picked up by Van Kuren and another officer and escorted out. There is significant consistency in the testimony of all of the witnesses to the events in the 5C interview room, except as to whether the inmate was punched and kicked. The grievor was sitting in a chair. He was ordered to stand up against the wall to be frisk searched. He stood against the wall. He was frisk searched. Gillis began to put handcuffs on and then, very quickly, the inmate and a number of correctional officers were on the ground. Officers were shouting ?stop resisting? and the inmate was saying ?I?m not resisting.? All three of the grievors testified that they did not punch or strike or kick the inmate in the 5C interview room, nor did they see anyone do that. All three Correctional Officers who testified against the grievors saw punches thrown at the inmate in 5C. Officer 1 ?was certain? that Van Kuren and Gillis threw punches at the inmate. Officer 2 saw Meadows and Van Kuren 12 punch the inmate in the shoulder area. Officer 3 had the ?sense? that the inmate was struck a number of times. Additional testimony was provided by Operational Manager Liz Coccia. She testified that when she arrived in 5C she saw Gillis with the inmate in the interview room and the inmate was pacing, and the situation seemed under control so she went to check on officer Smid in the 5C office. She heard a commotion and went back to the interview room. A lot of officers were there and she didn?t see the inmate. She heard voices saying ?stop resisting? and the inmate saying ?I?m not resisting? several times. She went inside the room and said, ?That?s enough; get the inmate cuffed and everybody out.? In her statement to the CISU, she also stated that she said, ?This inmate has assaulted an officer and needs to go to seg.? She testified that she asked Correctional Officer Carter Yule if he had a pair of handcuffs. He did and in seconds, the inmate was cuffed and brought around to where she could see him. The inmate was walked forward out of the room. Coccia also testified that Operational Manager Singh came in the room and talked to the inmate. She stated that the inmate said, ?Mr. Singh, I?m not resisting.? Singh replied, ?You?ll be resisting. You?ll continue to resist.? She did not take his comments seriously and went to take Correctional Officer Smid to the medical unit. In her testimony at the hearing, Coccia said that her statement ?that?s enough? referred to the fact that there were too many correctional officers there. In her interview with the CISU, however, she stated, ?I assumed they may be getting out of control that?s why I said that?s enough boys.? She added, ?I arrived at the assumption that excessive force had been used.? OM Rick Singh was not called by either side to testify. He was discharged for his conduct in connection with this matter. OM Coccia was given a 20-day suspension. 13 2.The Elevator Again, there is a great deal of conflicting testimony regarding what occurred in the elevator. One thing that is not in dispute is that the inmate was handcuffed with his hands behind his back. According to Gillis, he had ?hands on? the inmate when he was walked, backwards, from the 5C interview room to the elevator. Another officer, he did not recall whom, had the other arm of the inmate and the group proceeded to the elevator, accompanied by OM Singh. He stated that they moved quickly to the lobby where the elevator had been keyed and held open by an officer, and they walked the inmate into the right corner of the elevator and turned him around so he faced the corner. He was adamant that they did not ?run? the inmate into the elevator and the back wall. The elevator ride from the fifth to the second floor lasted ?a matter of seconds? and nothing happened during the ride. He put his hand on the inmate?s head so he could not turn. The inmate was compliant in the elevator until the time to exit. In his Occurrence Report, Gillis stated that when they reached the elevator, ?[t]he inmate continued his efforts of physical resistance and verbal abuse towards staff.? In his statement to the CISU, he stated that he did not ?remember moving the inmate from the Interview Room to the elevator?.I don?t remember if he was still swearing in the elevator or not?I remember nd when the elevator door opened to get off at the 2 level he said something more threats to Staff, I?m going to kill you. I don?t know who he was talking to because I believe he was still facing the corner. When the elevator door rang before the door opens, I remember him doing something with his feet whether he was trying to turn he may have even tried to donkey kick. I remember using force to move him out of the elevator.? He did not mention any of this at the hearing. 14 At the hearing, Gillis testified that when they reached the second floor and the doors opened, he tried to turn the inmate around and pull him because he was not following, and in the process of turning him around ?we went to the ground.? The inmate was completely down on the floor and he and the other ?hands on? officer were on their knees. A couple of staff came back into the elevator to control the inmate and they quickly gained control. He could not recall if they carried the inmate out in a prone position. At some point, though, he was walked to Unit 2B. Gillis acknowledged, on cross examination, that he had never told anyone about the inmate going to the ground in the elevator prior to this hearing. It was not in his Occurrence Report or in his interview with the CISU. Gillis testified that he, personally, did not punch, hit or kick the inmate in the elevator and he did not see anyone else do that. He could not, however, name one other officer in the elevator other than OM Singh. He stated that he was ?busy and focused on the inmate?s movement and increasing resistance? and so was ?not able to witness what others did.? He continued to have ?hands on? the inmate throughout the elevator ride and when exiting the elevator. Meadows testified that he led the escort to the elevator. Someone had keyed the elevator and it was there. He stood by the elevator door as Van Kuren and Gillis walked the inmate into the elevator backwards and the inmate was told to face the corner. He was not run into the elevator. He followed a number of officers into the elevator. Meadows stated that the inmate was yelling and pushed and had to be held against the corner. The inmate kept trying to turn and his shoulders were held against the wall. That was ?all that happened.? The ride lasted ?four or five seconds?. The elevator was full, with 11 or 12 officers and the inmate. He did not see the inmate go ?limp? to the floor of the elevator until he was coming out of the elevator. He stated that when the doors opened, he stepped out and saw kitchen worker inmates in the lobby area, so he 15 went there to direct them to the kitchen. He heard a commotion, and saw the escort and inmate go to the ground. He was making his way there when other officers picked him up off the ground. He believes that the inmate was walked out of the elevator backwards. He continued behind the escort to 2B. Meadows testified that he did not punch, kick or elbow the inmate and he did not see any other officer do this in the elevator. Beaulieu was also on the elevator. He testified that he walked behind the inmate from the 5C interview to the elevator. Someone keyed the elevator, it opened and the inmate was walked into the back of the elevator, and he followed in. He testified that the inmate was swearing and belligerent and was faced into the corner. The inmate was standing the entire time, facing the wall. He ?believes? that when the doors opened, the inmate was turned and it was ?natural [for him] to bend over? but at ?no point? was he lying on the ground. He was standing for the entire elevator ride. On cross-examination, Beaulieu stated that the inmate was not resisting in the elevator except verbally. Beaulieu stood near the inmate in the elevator the entire time and then the inmate was walked to 2B and he followed. Beaulieu testified that he did not punch, kick, hit or elbow the inmate in the elevator, and he did not see anyone do that. Again, the three eyewitnesses who testified against the grievors recalled a very different elevator ride. 16 Officer 1 testified that he left the 5C interview room while the escort was still inside, and went to see if any other assistance was needed and to see how Smid was. He then noticed the escort leaving the interview room and rejoined it. He stated that after the elevator doors opened, the inmate was rushed into the corner of the elevator and his chest and head impacted the back wall. Officer 1 entered the elevator and faced the rear. He is tall and was able to see the head of the inmate. He testified that once the doors closed he saw Gillis and Van Kuren and a couple of other officers deliver blows to the inmate. He saw arm movements, knee drops and heard connections. The inmate was making whimpering and crying sounds. He stated that the inmate was carried out of the elevator. Officer 1 stated that during the elevator ride, he looked at OM Singh but he would not make eye contact and said nothing. Officer 2 testified that he went with the escort to the elevator and when the doors opened the inmate was rushed to the back wall of the elevator, hit the wall, and went limp. He said ?more shots?, closed fist punches to the head and shoulders were made by Meadows and Van Kuren. The officers kept saying, ?Stop resisting.? and the inmate kept saying ?I?m sorry. I?m not resisting.? He also saw kicks but could not tell who did them. The inmate, who was still handcuffed, was not resisting. He could not recall how the inmate left the elevator. Once the door opened the escort went to 2B. In his statement to the CISU, Officer 2 testified that he saw Van Kuren, Meadows and Beaulieu strike the inmate in 5C, the elevator and in 2B. He testified the same to the police. Officer 3 did not see the escort enter the elevator, but he stated that the inmate was assaulted in the back of the elevator. He testified that Van Kuren, Meadows ?and others? threw punches 17 and kneed the inmate. He saw Meadows elbow the inmate in his back while the inmate was bent over, and Van Kuren knee him. The officers kept saying, ?Stop resisting.? and the inmate kept saying ?I?m not resisting.? He saw no resistance from the inmate. He did not recall how the inmate left the elevator ? whether he was carried, dragged or walked. The Union asserted that Officer 3?s identification of Meadows in the elevator was mistaken because it was based on his wearing a hat. In fact, the Union asserts, Meadows was not wearing a hat that day, but Correctional Officer Derkach was. During his testimony at both the hearing and the CISU, Officer 3 remained emphatic that it was Meadows who elbowed the inmate in the elevator, not Derkach. Correctional Officer Paul Van Kuren was originally a grievor in this matter. He was one of the officers, along with the grievors, who was criminally charged with assault causing bodily harm on inmate Burke in this matter. On May 19, 2006, Van Kuren pled guilty to the charge. There was an agreed statement of fact, which was read out in the court proceedings. In relevant part, the agreed facts state as follows: Michael Burke was incarcerated at the Hamilton Wentworth Detention Centre in th October of 2002. On October 18, 2002, he assaulted a correctional officer, John Smith [sic], while he was in the 5C dayroom, by hitting him in the back of the head with a hard plastic cup, which was contained in a sock. He swung the sock-cup combination in a slingshot manner to increase the velocity of the blow causing Officer Smith [sic] to be injured with bruising and redness to the area. An all-staff alarm was sounded to bring assistance to Officer Smith. The inmate was ordered by the correctional officer, Thomas Randall, who was watching the day room and operating the door to the dayroom to comply with officers sent in to remove the inmate from the dayroom. The inmate complied with the two officers who told him to place his arms behind his head to be led out of the room. They took control of him without incident or resistance leading him to a nearby interview room. As a result of the all-staff alarm, 20 to 30 other officers have responded to the area, many of them crowded into the interview room where the inmate was put in 18 handcuffs as he was going to be taken to segregation as a response to the assault on Officer Smith. The inmate was then physically led to the elevator to transport him to segregation. The accused Paul Van Kuren was one of the officers who led him to the elevator. While in handcuffs, the inmate was punched and kicked while on the elevator with 8 to 10 officers in escort. Paul Van Kuren punched the inmate a few times. The inmate received several blows while on the elevator. Officers were yelling ?Stop resisting? and the inmate responded by saying ?I?m not resisting.? The inmate was then taken to another cell, his cuffs were removed and then he was taken to cell 2B [sic]. As a result of the assault, the inmate suffered the following injuries: Bruises and abrasions to his face and shoulders. A one centimeter laceration to the top of his head and a large contusion to his right eye causing it to shut. Van Kuren?s lawyer then advised the court that ?My client Mr. Van Kuren admits to having punched the inmate two or three times in the shoulder. He does not admit to having caused any injuries whatsoever to the inmate or any injuries that are set ? you?ll see in the pictures. My client does not admit to having caused any of those.? Counsel for the Crown stated that ?The Crown consents to that modification to the facts or the extent of the admission by Mr. Van Kuren. This was obviously an incident where many were involved then that?s the extent of his admission and the Crown is content with that, sir.? The Court then stated: ?On the basis of the facts as admitted to, a finding of guilty is made against the accused Paul Van Kuren.? The Court found Van Kuren guilty of assault. Counsel for the parties dispute the significance of Van Kuren?s finding of guilt in this matter. I will address that below, but at the minimum, it stands as an admission by Van Kuren that he punched the inmate two or three times in the elevator. 19 The criminal charges (assault causing bodily harm) against the grievors were withdrawn by the Crown during the same proceeding. The Crown Attorney advised the Court that its decision was based on a number of factors, including the fact that during the preliminary hearing the inmate refused to participate and refused to give evidence. He later came back and started to give a series of ?I don?t remember? answers. It also considered the delay that had occurred, the defendants? assertion that the inmate was resisting and the force used was justified and the fact that the only common element among the three correctional officers who came forward was their evidence about Van Kuren. On those bases, the Crown had to assess whether they could prove guilt beyond a reasonable doubt. The Crown Attorney concluded: ?Essentially, the Crown is withdrawing because although we think we may have been able to prove they were probably guilty, we would not have been able to prove beyond a reasonable doubt that they struck the inmate in an unjustified manner.? 3.Unit 2B, Cell 17. Much of what happened in 2B is also in substantial dispute. Officer 2 testified that the inmate was run into the back of the cell where he hit the top of his head on the wall, and then was punched in the back and shoulder area by Van Kuren and Beaulieu. He stated that the inmate was leaned over a stool and then moved to the bunk where he was placed on his knees with his body over the bunk. The handcuffs were then removed. Someone then said that a cell was available in segregation and Singh directed that the handcuffs be put back on and the inmate was helped off the bunk. The inmate then kept going down and the officers were yelling, ?stand up? and more punches were thrown. He stated that OM Singh was there and the inmate said, ?I didn?t do anything wrong? and someone replied, ?you assaulted an officer? and then OM Singh punched the inmate in the face area, jolting his head backward and the inmate went limp, after which he was punched and kicked again. 20 Officer 1 told the CISU that he ?believed he was run into? the cell, but he was ?not certain.? At the hearing, he did not recall that happening. He stated that a significant number of officers were in the cell when he stepped in and it was crowded. He saw the officers put the inmate on the floor, and then start to remove the handcuffs. It was ?possible? that he was placed on the bunk. He then left the cell to see if a cell in segregation had become available. He went to the 2B office and met another officer coming in who advised him that a cell in segregation was available. He then went back to the cell and advised that a cell in segregation was available. OM Singh ordered that the restraints be reapplied and Officer 1 stepped out again and stood outside the door, down a bit. He did not see any use of force on the inmate while in 2B, but he did say that the inmate appeared unconscious as he was carried/dragged out of the 2B cell. He stated that officers were telling him to ?stand up? and pulling up on his arms and the inmate?s head was down towards the floor. He testified that the inmate ?seemed to come to a bit? and was half walking, half dragged out of the 2B cell. As OM Singh passed him by he asked him if he could return to his posts and Singh said, ?yes.? Officer 3 testified that the inmate was inside the 2B cell when he got there. He had heard a commotion but was unable to see. He heard the inmate groaning and crying. The inmate was on the floor, leaned over the bunk. Beaulieu was on the inmate?s left hand side and Officer 3 went to the inmate?s right hand side. He said he put his hand on the inmate?s head to secure him, but that the inmate offered no resistance. Someone advised that a cell in segregation was available, so the handcuffs were reapplied and the inmate was lifted up by officers, including Van Kuren. When the inmate was pulled up, he saw that the inmate had a severe injury to his eye and there was blood on his face. He then saw OM Singh hit the inmate with an upper cut to his face which knocked out the inmate. He did not fall to the floor, however, because he was being held 21 up by two officers, but he went limp. The inmate was then dragged out of the 2B cell and taken to segregation. The only person that he saw strike the inmate in the 2B cell was OM Singh. Gillis testified that he was on the inmate?s left side when they entered the cell in 2B. He said that the inmate was placed on the floor to kneel over the bunk and he began to remove the handcuffs when the inmate started to resist. Other officers moved in to control the inmate and he was pushed to the side. He did not run the inmate into the wall. He did not strike the inmate in 2B or see him struck in 2B. Although he was standing near the inmate in the cell, he did not see OM Singh strike the inmate in 2B. Meadows testified that he was not in the 2B cell. He waited by the 2B grill area and chatted with Officer Carter Yule until the escort went to segregation. He held the door open and followed the escort to segregation. He did not mention this in his Occurrence Report or his statement to the CISU. Beaulieu testified that OM Singh led the escort into 2B and he followed behind the inmate. The inmate was told to kneel on the floor and lean over the bunk. One handcuff was off when someone said that a cell in segregation was ready. Beaulieu stated that he grabbed the inmate?s right hand and put his left hand on top of his head, so the inmate could be handcuffed. The handcuff was then reapplied and the inmate was lifted off the bunk to his felt and he was walked out of the cell to segregation. The inmate was not run into the back wall, nor placed over a stool. Beaulieu stated that he did not strike the inmate and saw no injuries on him. He ?didn?t recall? Singh hitting the inmate in 2B, though he admitted that it was ?possible.? He did not see it or hear it. 22 Segregation 4. There is no assertion that excessive force was used on the inmate in segregation. It should be noted that there were cameras in segregation. At the relevant time, there were no cameras in the 5C interview room or on the elevator or in the 2B cells. There were cameras on the ramps. Institutional policy states that inmates are to be escorted by way of the ramps unless the elevator is authorized by an OM. In this case, there is no question that OM Singh approved taking the inmate to 2B via the elevator. Officer 3 testified that the inmate was placed in the segregation cell, placed on the floor and told to lean over the bunk. He then removed the handcuffs. He stated that the inmate was compliant. He was asked by OM Susan Boles, who had arrived in the cell, to obtain some ice for the inmate?s injuries, so he left to do that and then returned with ice. He testified that OM Boles then took photographs of the inmate?s injuries. OM Boles took eight photographs. Her Occurrence Report notes that the inmate admitted to ?cupping? Officer Smid and complained about the use of force on him following that. RN Debbie Giroux examined the inmate in segregation. The ?Accident/Injury Report? that she completed contains the following description of the inmate?s injuries: Saw i/m after all staff. Rt eye swollen shut, area cleansed [with] normal saline. Superficial 1cm laceration to top of head. Many areas of redness [on] neck, shoulders. No c/o dizziness, or vomiting or headache or blurred vision. BP 130/78 P-84. The inmate?s ?statement? section says: ?Got hit in right eye.? 23 In her testimony, Giroux stated that she performed a thorough assessment from the waist up of the inmate, but on cross-examination acknowledged that she did not note an obvious injury to the left side of his face, nor injuries to his back or under his arm. She did not place him on a head watch because he seemed coherent and alert, but she acknowledged on cross-examination that he should have been placed on a head watch for the evening. She stated that his injuries were not consistent, in her view, with being rammed head first into a wall. She would have expected a deeper head laceration and indications of dizziness. But she acknowledged that the inmate had a laceration to the top of his head, though it was a ?superficial? injury. She further acknowledged on cross-examination that he had some ?alarming injuries? and that he ?had trauma inflicted on him.? The Union also presented the testimony of Correctional Officer Steven Shumacher, who was present in segregation when the inmate was brought in. On examination-in-chief, he testified that the inmate walked into segregation ?under his own full steam? and he did not see any injuries on him. He was ?lively, energized by the situation? and ?very coherent and cogent.? He did not think his face looked injured. There was a cut on the top of his head, but it did not look that serious. On cross-examination, he was shown the photographs and stated, quite emphatically, that the inmate ?did not look like this in segregation.? When asked if he agreed that the photographs showed that the inmate had been beaten up, he answered, ?definitely beaten up.? When asked about the eye injury, he responded, ?I didn?t see an eye injury; perhaps I?m a moron, but I didn?t see that.? A short time later, the inmate was transferred to Brantford Jail. Upon his arrival, additional photographs were taken and he was examined by R.N. Vinnai, who examined him at approximately 6:10 in the evening. She testified that she was alarmed when she first saw him. It 24 was clear to her that he had been beaten up and she thought he should go to the hospital. She suggested it but was overruled. There was evidence, however, that she could have insisted that an inmate be taken to the hospital. The following day, October 19, the inmate was assessed in the health care unit at Brantford Jail. His right eye was still swollen shut and bruised. There was no vomiting but he complained of headache and dizziness and was offered Tylenol for that. On October 20, he complained of rib discomfort. On October 21, the inmate was interviewed by Hamilton Wentworth Detention Centre Security Manager Barton. His statement was provided to Inspector Graham. In relevant part, the inmate stated that he did not recall hitting Smid. He recalls talking on the telephone to his girlfriend and ?the next thing I remember I was in the elevator getting my face kicked in.? He recalled someone asking do you want to take him down the elevator or the ramp and someone replied the elevator. Then he was in the ?hole? [segregation] getting looked at by a nurse. He said two of his teeth were chipped and ?my eye was bruised up and bleeding pretty bad.? His ribs hurt. His thumbs hurt and would go numb when he pushed them. He further stated: Someone kept calling out ?stop resisting, stop resisting? and then Mr. Singh was pointing right at me, saying ?you?re going to resist all the way down stairs?, making it look like I was going to get the shit kicked out of me all the way down. This was as I was leaving the interview room. In the interview room, I was told to get up from the chair and put my hands on the wall, I did this and then someone behind me kept pushing my feet apart until I ended up on the floor. Then I was cuffed and that is when they were yelling ?stop resisting, stop resisting? and I was yelling ?I?m not resisting and I was saying this loud enough for my friends on both sides to hear me. The guards pulled me up off the ground and walked me out of the interview room backwards, that is when that 25 Mr. Singh guy said ?you are going to be resisting all the way down stairs.? Then in the elevator I got an elbow to my back and a foot to my face. I saw two of my teeth go flying. I then turtled and they kept kicking me, that is how I got all theses scars to my head from their boots. Once in 2B a guard lifted up my face and punched me in the eye. He further stated that when the officers learned that he had hit an officer, not another inmate, they were ?looking pretty pissed off calling me a tough guy and this and that shouting off their mouths at me.? He was told to stand up against the wall which he did ?with no resistance, none.? He was told to spread his legs and then his right leg was kicked out and went down. The officers were saying ?stop resisting? he got cuffed, and they told him to get up, but he couldn?t, so they lifted him by the cuffs. He then told Singh, ?look I?m not resisting? and Singh replied ?you?re going to resist all the way downstairs.? He was walked out to the elevator and ?once in the elevator I got kicked in the mouth and an elbow in my back.? He fell to the floor and ?they started stepping on my head and kicking me all over.? When the elevator opened, his screams brought kitchen inmates to see what was happening but he ?was not sure if that is before or after 2B? [because] he ?kept going in and out of consciousness, they kept telling me to get up and walk on my own. Then I ended up in the hole and the cuffs were removed?? He did identify, by description, the officer who hit him in the eye, but he did not identify anyone else. That officer was later identified as Correctional Officer Stewart Kanter. On December 16, 2002, the inmate was interviewed by Inspector Graham. During that interview, the inmate confirmed that he was assaulted in the 5C interview room, the elevator and the 2B cell, but he did not identify any of the officers. He confirmed that what occurred was ?hazy? and he had been going in and out of consciousness. Neither party called the inmate to testify in this matter. 26 Inspector Graham completed his report in late May 2003. Superintendent Thomas reviewed his conclusions. He agreed with some, but disagreed with others. Specifically, Superintendent Thomas concluded that Gillis used excessive force on the inmate throughout the escort, as did Meadows, Beaulieu and Van Kuren. Unlike Inspector Graham, he concluded that there was insufficient evidence to conclude that Kanter struck the inmate. This was based on the fact that there were no eyewitness who identified Kanter as striking the inmate in 2B, whereas there were several eyewitnesses who stated that OM Singh did. He found it more likely than not that OM Singh punched the inmate in the face, not Kanter. Likewise, he concluded that there was insufficient evidence to conclude that Derkach used excessive force on the inmate. On July 11, 2003, he issued the letters discharging the grievors. In terms of the other Correctional Officers originally suspended, they were given 15 day disciplinary suspensions for observing the assault, failing to protect the inmate, and for being dishonest and deceitful in filing their reports and responding to Ministry investigators. Notably, the three officers who came forward also received disciplinary suspensions for their actions as well. On July 14, 2002, grievances were filed asserting that the grievors were discharged without just cause. In addition to the discharge grievances, grievances were filed by the grievors concerning their suspension with pay from March 6, 2003 to their terminations. The claim is that they did not receive their full pay, because it did not include overtime and working on statutory holidays. 27 Submissions of the Parties Closing arguments took four days in this case. I do not intend to review all of the parties? arguments here. I will refer to the arguments and relevant case law, as appropriate in the decision below. Decision 1.Standard of Proof Both parties agree that because of the serious nature of the allegations in this case, the Employer must establish, on the balance of probabilities, that the grievors engaged in excessive force based on clear and cogent evidence. OPSEU (Sindall/Talbot) and Ministry of Solicitor General and Correctional Services (1997), GSB No. 164/96 (Gray)(and cases cited therein); OPSEU (Horan) and Ministry of Public Safety and Security (2002), GSB No. 06701 (Herlich). The Union asserts that this standard borders on proof ?beyond a reasonable doubt.? I disagree. As set forth in Brown and Beatty, Canadian Labour Arbitration, at 7:2500, Standard of Proof, the ?standard remains? something less than the criminal standard?? A.B.F. Freight Systems (B.C.) and General Truck Drivers & Helpers? Union, Local 31 (1987), 28 L.A.C. (3d) 246 (McPhillips); OPSEU (Sindall/Talbot) and Ministry of Solicitor General and Correctional Services, supra at p. 17. Credibility 2. As in many cases that come before an arbitrator, this case turns on credibility. There are vastly different accounts of what occurred during the escort of inmate Burke from the 5C interview room to segregation. Credibility determinations may be difficult, and the difficulties can be compounded when there is a substantial gap between the date of the event and the 28 testimony at the arbitration hearing, as there is here. They are also compounded when the witnesses have repeatedly given statements about the incident ? in this case, in Occurrence Reports, the CISU investigation and the police. Yet whatever the challenges, it is the job of an arbitrator to analyze and weigh the evidence presented. As eloquently stated by Arbitrator Paula Knopf in Re U.S. Airways and U.S.W.A. (T.M. Grievance), [2002] C.L.A.D. No. 451 (QL), 71 C.L.A.S. 107, quoted in Re Toronto Transit Commission, and Amalgamated Transit Union, Local 113 (2006), 153 L.A.C. th (4) 216, at 236 (Johnston): The task of an arbitrator is to analyze and weigh the evidence as presented. Arbitration is not a quest for truth. One always hopes that the evidence will reveal the truth. The adversarial process is designed to try to reveal truth and expose lies. But even when this occurs, one cannot really know that the truth has been brought to light. The best that arbitration can provide is a controlled, fair and evenhanded hearing so that the available evidence can be received by an objective third party who will analyze it in order to determine what it establishes ? I am able to analyze the evidence and decide what has been proven. But that does not mean that I can now say that I have discovered what really happened. The result in this award may or may not jive with reality. The result is dictated by what the totality of the evidence established. ? In deciding what the evidence establishes, both parties cited to the British Columbia Court of Appeal decision in Faryna v. Chorney [1952] 2 D.L.R. 354(B.C.), where the Court considered the credibility of two interested witnesses, at p. 357: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the stories of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and those conditions. 29 Or, as said a bit more simply by Vice-Chair Bram Herlich in OPSEU (Horan) and Ministry of Public Safety and Security, supra at p. 4: ?what seems most probable or likely in the circumstances.? In making this assessment, I come back to certain facts that cannot be refuted. First, the inmate was seriously assaulted from the time he entered the interview room in 5C to segregation. This is clearly established by the photos and the uncontroverted evidence that the inmate had no visible injuries when he arrived in the 5C interview room. In contrast, the photos taken in segregation and at Brantford Jail reveal a very injured individual. His right eye is swollen shut and bleeding. There are numerous cuts and abrasions to his face, head, shoulders, neck and back. He clearly looks like someone who was badly beaten up. The Union tried to minimize the injuries through the testimony of RN Giroux and Correctional Officer Shumacher. Schumacher, who was present when the inmate was brought into segregation, was certainly an interesting witness. But his testimony did not aid the Union. Nor did that of RN Giroux. The photographs, as Schumacher admitted on cross-examination, reveal someone who was beaten up, and as Giroux admitted, the inmate had some ?alarming injuries? and ?trauma? inflicted on him. The Union asserted that the only significant injury to the inmate was the eye injury and the rest were ?superficial?. Without question, the eye injury was the worst of the injuries but it was not the only injury. There were many significant bruises and abrasions to his head, face, neck, shoulders and back. These were real injuries and he received them while on the escort. 30 The evidence is undisputed that the photographs of inmate Burke were taken very shortly after the inmate arrived in segregation. There is no assertion (and no evidence) that the injuries occurred while the inmate was in segregation. They happened before he got there. In my view, the evidence is clear and compelling that the inmate suffered numerous injuries to his face, head, shoulders and body during the escort. The Union, at the start, contested that the inmate was struck during the escort, except by OM Singh. It suggested that the redness on the inmate?s neck may have been caused by his clothing being pulled up. There is no evidence of that. It suggested that the inmate may have been injured before he went to the 5C interview room. There is no evidence of that. In closing, the Union suggested that the injuries were caused by other Correctional Officers, but not the grievors. The Union specifically mentioned Officers Derkach and Kanter. In his statement to the CISU, Officer 3 testified that Derkach had punched the inmate in the elevator. When asked about that at the hearing, however, he testified that he did not remember that. There was no other evidence that Derkach hit the inmate. The inmate, in his statement to Security Manager Barton, gave a description of Officer Kanter as the one who punched him in the eye. But there was no evidence to corroborate that and there was substantial evidence, including his admission in his Occurrence Report, that OM Singh struck the inmate in the face. It seems highly likely that others used excessive force on the inmate as well ? that this was a group effort - but there is insufficient evidence to conclude what they did. Moreover, such evidence does not negate the fact that the grievors were active participants. Also, it is an unassailable fact that Van Kuren repeatedly punched the inmate in the elevator, despite the grievors? assertion that nothing occurred there. Van Kuren?s admissions and 31 the Court?s finding him guilty of assault, based on those admissions, establishes as fact that he assaulted the inmate in the elevator. The parties argued vigorously over the impact of the admissions and guilty plea by Van Kuren. The Employer argued that in light of City of Toronto and C.U.P.E., Local 70 (2003), 120 th L.A.C. (4) 225 (S.C.C.), the board of arbitration must accept the agreed facts, the conviction and the sentencing conclusions and that the conviction establishes conclusive proof that assault took place in the elevator which cannot be relitigated in this arbitration. The Employer also cites to Registrar, Motor Vehicles Act v. Jacobs [2004], 69 O.R. (3d) 462 (Ont. Div. Ct.); Re Newfoundland and Labrador Housing Corporation and C.U.P.E., Local 1860 (2004), 127 th L.A.C. (4) 353 (Oakley); OPSEU (Collin) and Ministry of Community Safety & Correctional Services(2006), GSB No. 2001-1578 (Harris). The Employer also relies on Section 48.1(1) of the Crown Employees Collective Bargaining Act (CECBA). That provision reads: 48.1.(1) Criminal Conviction or discharge considered conclusive evidence. If a Crown employee is convicted or discharged of an offence under the Criminal Code in respect of an act or omission that results in discipline or dismissal and the discipline or dismissal becomes the subject-matter of a grievance before the Grievance Settlement Board, proof the employee?s conviction or discharge shall, after the time for an appeal has expired or, if an appeal was taken, it was dismissed and no further appeal is available, be taken by the Grievance Settlement Board as conclusive evidence that the employee committed the act or omission. This provision, the Employer argues, requires this Board to treat Van Kuren?s conviction as conclusive evidence that he assaulted the inmate in the elevator. It contends that all of the requirements set out in the provision are present here. Van Kuren was a Crown employee convicted of assault. That assault led to his dismissal and led to grievances being filed. The 32 conviction was not appealed and it stands as ?conclusive evidence that the employee committed? the assault. It submits that the fact that he withdrew his grievance changes nothing. The Union argued that the conviction is not binding on me. It asserts that Article 48.1(1) ofCECBA, by its wording, only applies when a grievor is contesting his or her discipline through a grievance before the GSB. It argues that since Van Kuren withdrew his grievance, it has no applicability. As to the City of Toronto and C.U.P.E.,supra, the Union argues that the rationale of that case does not apply because it was a plea bargain, not a conviction after a trial. It further asserts that whatever reasons Van Kuren may have had to plead guilty to assault, and whatever facts he agreed to, should not bind the grievors in this case. It points out that the grievors had absolutely no control over the ?agreed facts? and argues that it would be extremely unfair to the grievors to bind them to those ?facts.? It also notes that the ?facts? were not tested in an adversarial trial. In the alternative, the Union argues that the only facts which should be found to be binding are the ones admitted to by Van Kuren that formed the basis of the Court?s finding of guilty ? i.e., that he threw two or three punches at the inmate in the elevator. It does not include the other agreed facts, background or sentencing. The Union and the Employer make a number of interesting points regarding the scope of s. 48.1(1) of CECBA. I find, however, that I need not decide that issue. Even if the Union is correct in its interpretation of CECBA, the City of Toronto case establishes that the Union cannot relitigate, in this proceeding, Van Kuren?s conviction for assault. The City of Toronto compels a board of arbitration to accept the determination of the criminal court and the essential facts upon 33 which that determination is based. OPSEU (Collin) and Ministry of Community Safety and Correctional Services, supra; Registrar, Motor Vehicles Act v. Jacobs, supra; Re Newfoundland and Labrador Housing Corporation and C.U.P.E., Local 1860, supra. I am unable to agree with the Union that City of Toronto is inapplicable because the conviction resulted from a plea bargain rather than a trial. The concern expressed in that case was that relitigation of a claim that the court has already determined could ?bring the administration of justice into disrepute.? The same concern exists when the judicial determination is made by way of a plea bargain. There is no indication in the decision that the abuse of process doctrine applies only to convictions based on a full trial. The Court noted some exceptions to the applicability of that doctrine, but judicial determinations based on plea bargains was not one of them. The Union, in this case, by asking me to ignore Van Kuren?s conviction and the facts upon which it is based, is, in essence, seeking to relitigate what Van Kuren did in the elevator. The grievors maintain that the inmate was not beaten ? by anyone ? in the elevator. Van Kuren?s conviction establishes that the inmate was beaten in the elevator. It establishes that Van Kuren threw two or three punches at the inmate in the elevator. That determination cannot be relitigated in this proceeding. In my view, I must accept the Court?s determination of guilt as it applies to Van Kuren and the facts upon which it is based. Van Kuren admitted that he punched the inmate two or three times in the elevator but denied causing the injuries. This amendment of the facts was accepted, and based on those facts, as admitted, he was found guilty of assault. I note that the facts admitted to by Van Kuren deal solely with his actions, not those of the grievors. 34 Consequently, accepting them causes no unfairness to the grievors. The other ?agreed facts? were not part of the Court?s decision. As to the other agreed facts, I have some real concern about binding the grievors to those facts. They include the following: While in handcuffs, the inmate was punched and kicked while on the elevator with 8 to 10 officers in escort. ? The inmate received several blows while on the elevator. Officers were yelling ?stop resisting? and the inmate responded by saying ?I?m not resisting.? ? As a result of he assault, the inmate suffered the following injuries: Bruises and abrasions to his face and shoulders. A one centimeter laceration to the top of his head and a large contusion to his right eye causing it to shut. The grievors, as the Union points out, had absolutely no control or input into the agreed facts. This type of situation may be one of the examples noted in City of Toronto, supra at par. 52, ?when fairness dictates that the original results not be binding in the new context.? I conclude, however, that I need not decide that question here because there was ample evidence, during the hearing, to establish the agreed facts outlined in Van Kuren?s trial. Because there is eyewitness testimony to support those facts, I need not rely on the ?agreed facts? outlined in Van Kuren?s trial and need not decide whether they are ?binding? in this hearing. The primary significance of Van Kuren?s admissions and the finding of guilt is that it establishes, as a fact, that the inmate was beaten by Van Kuren in the elevator. The primary significance of that fact is that it completely undermines the credibility of the grievors. The grievors saw nothing and heard nothing, even though they were in close proximity. Gillis was ?hands on? the inmate in the elevator. It is not reasonable or plausible that he could somehow have missed this. Even if Gillis was paying close attention to the inmate, he would have noticed 35 that the inmate was being repeatedly punched. But Gillis did not notice it or see anything. Beaulieu was very near the inmate as was Meadows. Yet they neither saw nor heard anything. The entire elevator is only approximately 8 feet by 5 feet. Their testimony that they saw and heard nothing in the elevator can only be characterized as untruthful. Van Kuren?s admissions and the Court?s finding completely undermine the grievors? credibility. In a similar way, it is undisputed that OM Singh struck the inmate in the 2B cell. OM Singh acknowledged this in his Occurrence Report, and thus it is also an ?admission? and an exception to the hearsay rule (assuming without deciding that Occurrence Reports are not ?business documents? within the meaning of the hearsay rule.) Yet, amazingly, none of the grievors saw this. Beaulieu acknowledged on cross-examination that it was possible, but he saw nothing. Nor did Meadows or Gillis. Again, they did not see anything or hear anything. In the background is the code of silence ? a code which compels Correctional Officers to remain silent about the actions of colleagues, or face serious repercussions in the workplace. Although some witnesses asserted that there is no such thing or asserted it was a very minimal thing (which, again, completely undermined their testimony), the evidence about the code of silence and its power was overwhelming. The three officers who eventually came forward were highly reluctant to do so because of the code of silence. They knew there would be serious repercussions for coming forward. The reality, though, was far worse than their fears. They have been excluded, shunned and ostracized. As they enter a room, officers leave. They are given the silent treatment. They are repeatedly called ?rat? and have had their names written next to the word ?rat? in graffiti in the washrooms. Officers have refused to work with them, both informally and formally through actual work refusals. In the case of Officer 3, he received death threats for ?ruining the lives of 12 men.? Officer 3, on his last day at Hamilton Wentworth 36 Detention Centre, had his four tires slashed in the parking lot. Earlier he had his vehicle ?keyed,? that is, the paint of his car was intentionally scraped by someone?s key. Their work environment has become, in a word, poisoned. This, in turn, created enormous stress on the three officers, and in one case, became a significant contributor to the failure of his marriage. The Union suggested that the three officers came forward with a tale of excessive force to save themselves and for gain ? promotional opportunities or transfers. There is absolutely no evidence to support that claim. The transfer of Officers 2 and 3 became necessary because of the constant mistreatment they received following the disclosure that they had come forward. Officer 3 had to leave work because of stress. Officer 1 had a request to transfer that preceded October 18, 2002. There is no evidence that anyone received a promotion or any other benefit because they came forward in this case. On the contrary, the three officers most assuredly did not benefit. They also received significant discipline. The evidence was overwhelming that the code of silence is a powerful and pervasive force throughout many facilities within the Ministry of Corrections, not just at Hamilton Wentworth Detention Centre. As OM Scott Mason testified, when Officer 2 was transferred to another institution his reputation preceded him, and he was shunned and isolated. Co-workers refused to work with him. So far from the fresh start Officer 2 had hoped to achieve, the code of silence ensured that he received more of the same. The existence of a ?stay solid? mentality and the need for mutual support in a ministry such as Corrections is understandable, to some extent. Correctional Officers depend on one another for safety and support. However, when a Correctional Officer engages in serious misconduct at work ? for example, an assault on a restrained and compliant inmate ? the Code of 37 Silence forces Correctional Officers to look the other way and turn a blind eye to what happened in a truly misguided attempt to protect Correctional Officers who have abused their position of power and trust. Given their responsibilities to protect inmates under their custody and control as Correctional Officers, it is simply wrong. But the Code of Silence does even more harm than permit Correctional Officers to act wrongfully without consequences. It punishes the wrong people. It punishes those who come forward to tell the truth. The operation of the code of silence explains a great deal in this case. It explains why the grievors maintained that they did nothing, saw nothing and heard nothing. It explains why Gillis could not remember even one other officer who was in 5C, or the elevator, or in 2B, except for OM Singh and the inmate. The only other explanation is that he has the worst imaginable powers of observation for an experienced Correctional Officer. That seems unlikely given his position and extra training with ICIT. Undoubtedly, Gillis was trained to focus on the inmate, but he was also trained to observe what was happening around him. The Use of Force Training Manual states that ?awareness should include both the situation (surroundings) and the aggressor.? It would not be realistic to expect Gillis to remember everyone who was there. None of the witnesses could. But all of the witnesses, except Gillis, could name some of the people involved. Gillis, however, although he was involved throughout, could remember no one. His inability to recall anyone else involved, however, makes sense in the context of the code of silence. The Code explains why no one wrote an Occurrence Report that mentioned any names, except OM Singh. It explains why some of the individuals involved shared their Occurrence 38 Reports before they were submitted to OM Singh. It explains why no one came forward until after correctional officers were suspended and dismissal and obstruction of justice charges loomed as a real possibility. Even then, the grievors stuck with the Code of Silence. Not only does the Code of Silence undermine the credibility of the grievors, it actually enhances the credibility of the three officers who came forward. The pressure on them to remain silent was enormous. It was only the threat of dismissal (and the potential for criminal obstruction of justice charges) that led the three officers to break their silence, knowing that by doing so they faced enormous ramifications at the workplace from their co-workers. It seems most unlikely that these three would ?make it up? if they truly did not see anything improper when they risked so much for coming forward. There is no explanation of why they would identify the grievors as the ones who assaulted the inmate, among all of the officers present in the escort, unless it actually happened. The Union argues that there is evidence that the three officers talked about the events and, essentially, concocted a story. There is some evidence, particularly from Officer 3?s CISU interview, that the three did discuss the incident. But the extent that they did so is not at all clear and their stories are not the kind of uniform recitation one would expect if they had concocted a story. Rather, their evidence reveals what they individually saw and recalled. As stated by the GSB in OPSEU (McPhee) and Ministry of Correctional Services (1993), GSB No. 2050/92 (Barrett), at p. 13: ?Each witnessed events from a different perspective and, as with any two eyewitnesses, saw, heard and remembered things somewhat differently.? Nor is there any evidence that the three officers were simply telling Inspector Graham what he wanted to hear. There are some questions and answers that might lead to that view ? 39 where they agreed to a question posed by Inspector Graham ? and it is true that Inspector Graham wanted names. But for the vast, vast majority of the interviews, the views expressed were clearly those of the individuals, not Inspector Graham. Further, Officer?s 1, 2 and 3?s recitation of what occurred was largely consistent throughout their interviews with CISU, the police and at the hearing. To be sure, there were some differences, but the basics were the same. It must be kept in mind that the three officers? testimony at this hearing took place four years after the actual event. Exact consistency with interviews that they gave a few months after the event cannot reasonably be expected. But there was cogency and consistency on the major issues. See, e.g., OPSEU (Horan), supra; Management and Training Corporation of Canada and OPSEU (Gregoire/Peddle), unreported decision of Paula Knopf, March 20, 2006; OPSEU (Adam) and Ministry of Community Safety and Correctional Services (2005), GSB No. 2003-0892 (Herlich); Mid-South Contactors Ltd. and I.B.E.W., Local 353 [2006] O.L.R.D. No. 2128 (OLRB, Slaughter). I would also note that the grievors? testimony was not always consistent with their earlier statements either. My determination that their testimony lacks credibility, however, as more fully explained below, is not based on their inability to testify exactly as they had with Inspector Graham or the police. It is based, in the words of Faryna v. Chorney, supra, on its lack of consistency with the probabilities of what occurred. The grievors? recollections were highly selective, self-serving and did not conform to the undisputable facts. What also adds to Officer 1?s credibility is that there were other officers who he identified as being present but was not sure if they had struck the inmate. When he wasn?t sure, he said so. This is true of Officers 2 and 3 as well. There was also no evidence that the grievors 40 had any reason to single out the grievors or Van Kuren, rather than the numerous other Correctional Officers who were involved. Officer 2, like Officer 1, was also largely consistent. He consistently maintained that Van Kuren and Meadows punched the inmate on the ground in the 5C interview room. He consistently maintained that he saw he inmate being rushed into the back of the elevator and that Meadows and Van Kuren punched the inmate in the elevator. He was less consistent in regards to Gillis (his presence) and Beaulieu, but on the individuals he testified about using force at the hearing, he has been consistent throughout. Officer 3 was also largely consistent. He consistently stated that Meadows elbowed the inmate in the back in the elevator and Van Kuren punched him. I do not accept the Union?s contention that Officer 3 misidentified Meadows. There is also significant consistency among the three officers, particularly in relation to the 5C interview room and the elevator. All three testified that the inmate was brought down to the ground in the 5C interview room. Two testified that punches or ?shots? were directed at the inmate and the third had the ?sense? that the inmate was struck a number of times. Two officers testified that the inmate was run into the back wall of the elevator. The third did not see the inmate escorted into the elevator. The Union argues that Officer 1 could not have seen the inmate escorted onto the elevator because he was at the back of the escort, if even that, because he had stopped in the 5C office to talk with Officers Smid and Randell. It asserts that because of the angle, one would have to be directly in front of the elevator to have seen the 41 inmate escorted in, and because he was in the rear of the escort he could not have seen into the elevator. I cannot agree with the Union?s assertions. The evidence shows that Officer 1 left the 5C interview room for the 5C office while the inmate was still in the interview room. He rejoined the escort as they were exiting. The Union?s argument about the angle of the elevator is premised on the notion that the elevator was already keyed and open as the escort arrived in the elevator lobby. There is insufficient evidence to support that contention. Rather, the credible evidence established that the elevator was not waiting for the escort, but had to be keyed. So those in the rear would have had time to gather in front of the elevator before the doors opened. In closing, Union counsel characterized the testimony of Correctional Officer Carter Yule as indicating that he was at the front of the escort and held the elevator door while the escort entered and watched them enter and they did not run the inmate into the back of the wall. He contended that Yule would have been ?in the best position? to have seen them enter the elevator. I have reviewed Carter Yule?s testimony at the hearing, his statement to the CSIU, and his interview with the police and I am unable to agree with this characterization. He testified that the escort team passed him by as they exited the 5C interview room and he followed them. They put the inmate on the elevator, and then he got on. He stated that he did not see them take the inmate onto the elevator. Further, Officer 1 is tall and was able to see over the heads of a number of the staff present. He testified that he saw the elevator doors open. I conclude, on the balance of the credible evidence, that Officer 1 was able to see the inmate escorted into the elevator, and I 42 credit his testimony, which was corroborated by Officer 2, that the inmate was run into the back wall of the elevator by Gillis and Van Kuren. For the foregoing reasons, I find the testimony of the three officers who came forward to be credible and compelling. Unlike the grievors, they were not ?interested? witnesses. They had no motive to lie about what occurred nor to single out the grievors as the ones who assaulted the inmate. Their testimony conformed to the photographs of the inmate and the admissions and guilty plea of Van Kuren. Their testimony, echoing the words of Faryna v. Chorney, supra, was consistent with and in harmony with the indisputable facts of this case. As Vice-Chair Herlich stated in OPSEU (Horan), supra at p. 18, in crediting the testimony of a Correctional Officer who testified about the grievor?s use of force over the testimony of the grievor: ?Her testimony rang true and furnished a picture of the events which is much more likely or probable than that painted by the grievor.? Conversely, the grievors? testimony was not credible. Their version of events provides no explanation at all for the injuries sustained by the inmate. Gillis would not even acknowledge that the inmate was injured, except to his eye. Regarding the bruising around his head and face, he saw ?redness? but he ?couldn?t say they were injuries.? He would not acknowledge that the inmate received a number of injuries during the escort. Beaulieu admitted that there were visible injuries on the inmate in the photographs, although they looked ?a lot worse than I recall him looking.? Meadows, like Gillis and Beaulieu, could provide no explanation for the injuries. They did nothing to cause them and saw nothing that would cause them ? not even the upper cut punch by OM Singh or the punches thrown by Van Kuren in the elevator. 43 In contrast, the injuries captured by the photos and noted on the medical logs support the evidence of the three officers who came forward. They testified to punches in the head and shoulder area. There was evidence that the inmate was run into the elevator wall, which is supported by the laceration on the inmate?s head. The photographs of the injuries sustained by the inmate during the escort are consistent with the type of punches, shots and elbows which the three officers testified took place. I conclude that Meadows credibility was even further undermined by the golf course incident. That involved an assertion that Meadows and a number of other correctional officers involved in this matter threatened Officer 2 at a local golf course on May 3, 2003. Meadows? testimony that the incident involved another matter, not the ongoing investigation into excessive use of force, and that he remained calm, cool and collected during this event was patently incredible. He admitted that he repeatedly called Officer 2, in front of his wife and a friend, a ?piece of shit?, a ?coward?, and asked him ?how can you live with yourself?? It seems highly unlikely that the golf course incident, which took place ten days after Officer 2?s interview with the police, did not involve the investigation into excessive use of force and the groups? perception that Officer 2 had ?ratted? them out. In all respects concerning that incident, I credit Officer 2 and his former wife. Consequently, Meadows testimony concerning what occurred at the golf course served to further undermine his credibility. The Union argues, however, that I must make an adverse inference from the fact that the Employer did not call the ?best? eyewitness ? the inmate ? to testify about who hit him. In this regard, the Union cites to Re Canada Post Corporation and Canadian Union of Postal Workers th (Seymour) (1992), 25 L.A.C. (4) 136 (Shime); Re Cannet Freight Cartage Ltd. and Teamsters th Union (1993), 35 L.A.C. (4) 314 (Bendel); Brown and Beatty, Canadian Labour Arbitration, 44 Section 3:5120, Failure to Call a Witness, and Spokinka, Lederman, Bryant, The Law of nd Evidence in Canada, 2 Edition, Butterworths (Toronto: 1999). The Employer argues that if the Union felt that the inmate would be helpful, it could have called him as a witness. It submits that there was no obligation on the Employer to call every potential witness. It also questions the ability of the inmate to add anything given that he was being beaten up at the time. Based on the facts of this case, I cannot agree that the Employer?s failure to call the inmate as a witness leads to an adverse inference that his testimony would not be favorable to the Employer. The inmate gave a statement three days after the event to Security Manager Barton in which he provided no names of the officers who beat him up, and stated that he was ?going in and out of consciousness.? He gave some detail about the beating, but did not identify anyone, although he did provide a description of one officer. Then, during the criminal proceedings, the inmate initially refused to testify and then he told the court a series of ?I don?t remembers.? The inmate was also interviewed by Inspector Graham on December 16, 2002. Again, in that interview, the inmate failed to identify by name any of the officers who assaulted him. He confirmed that there were assaults in the 5C interview room, the elevator and in the 2B cell, but could give no names. He also confirmed that things were ?hazy? and he was in and out of consciousness. InThe Law of Evidence in Canada, supra, the authors state as follows concerning the failure to call a material witness: 45 6.321 In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, ? or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. ? Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party?s case, or at least would not support it. Two points from that excerpt stand out in the context of this case. The witness must have ?knowledge of the facts? and ?be assumed to be willing to assist that party.? The inmate?s statement to Security Manager Barton and Inspector Graham indicates he had very limited ability to identify who assaulted him and his ?I don?t remembers? during the criminal proceeding casts substantial doubt on his usefulness as a witness. Moreover, the inmate cannot be ?assumed to be willing to assist? the Employer. InRe Canada Post Corporation, supra, a manager was assaulted during a strike but there was a real question about who assaulted him. The arbitrator in that case took an adverse inference from the Corporation?s failure to call as a witness the individual who had provided an affidavit in conjunction with an injunction proceeding in which he identified a ?large picketer? as the individual who had shoved the manager. The arbitrator concluded that there were ?serious problems of identity which might be assisted or elucidated by another person who witnessed the event.? In this case, I have no similar basis to conclude that the inmate would have provided assistance in identifying the Correctional Officers who struck him. Three days after the event he provided no names, and that situation was changed when he was interviewed by Inspector Graham. He did not even identify OM Singh as striking him. He stated that he was ?going in and out of consciousness.? Under these circumstances, it would not be appropriate to draw an adverse inference from the failure of the Employer to call the inmate as a witness in this hearing. 46 In summary, for the reasons set out above, I credit the testimony of the three officers who came forward over the testimony of the grievors. Their testimony, in utter contrast to the testimony of the grievors, was consistent with and in harmony with the indisputable facts in this case . Gillis and Meadows Engaged in Excessive Force in the 5C Interview Room and the 1. Elevator . Correctional Officers are ?peace officers? under Section 25 of the Criminal Code, and consequently, are authorized to use force when necessary in the performance of their duties. Correctional Officers, however, are not permitted to use excessive force. The use of force is outlined in Regulation 778 of the Ministry of Correctional Services Act, R.R.O. 1990. Regulation 778, Section 7 provides: 7 (1) No employee shall use force against an inmate unless force is required in order to, (a) enforce discipline and maintain order within the institution; (b) defend the employee or another employee or inmate from assault; (c) control a rebellious or disturbed inmate; or (d) conduct a search. (2) When an employee uses force against an inmate the amount of force used shall be reasonable and not excessive having regard to the nature of the threat posed by the inmate and all other circumstances of the case?. According to Gregory Ireland, Provincial Coordinator ? Use of Force Programs, punches, kicks, and kneeing are never authorized uses of force. He discussed the Use of Force Continuum and noted that it provides only for open or empty-handed techniques to deal with active resistance, followed by impact weapons and chemical agents. Appropriate force does not include closed fist punches or elbows in the back. It would also not include running an inmate into a wall. 47 In OPSEU (Sindall/Talbot), supra at pp. 23-24, the Board accepted the Employer?s argument that ?punching is not an effective means of achieving control? and that ?punches could not be justified as necessary to achieve control?? The Vice-Chair concluded that some punching might be justified for defensive purposes, but ?when the only objective was to achieve control, no punching could be justified.? In this case, there was no contention that the inmate was punched in self-defence. The claim was that grievors did not punch (or kick or elbow) the inmate. There was credible and compelling evidence that both Gillis and Meadows struck the inmate while he was on the ground in the 5C interview room. On the facts of this case, there was no basis for Gillis or Meadows to punch the inmate in the interview room. There is no credible evidence that the inmate was resisting. Officer 3, who held one of the inmate?s legs, testified that the inmate was not moving or trying to resist. Punching the inmate was not required or appropriate to achieve control or subdue a resisting inmate. There was no reasonable threat posed by the inmate when he was on the ground. I conclude that the actions of Gillis and Meadows in the interview room constituted an excessive use of force. There was credible and compelling evidence that the inmate was run into the back wall of the elevator, as he was held by Gillis and Van Kuren. On the facts, there was no justifiable reason for them to have done so. There was no evidence that the inmate was resisting or posed a threat. It was an excessive use of force. All three officers testified that the inmate was beaten in the elevator. Officer 1 saw Gillis and Van Kuren deliver blows to the inmate in the elevator. Officer 2 saw Van Kuren and 48 Meadows strike the inmate ? punches and kicks. Officer 3 saw Meadows elbow the inmate in the back and Van Kuren knee him. All three testified that the inmate was not resisting. Beaulieu confirmed that the inmate was not resisting in the elevator, except verbally, and Gillis testified that the inmate was compliant until they were exiting. Further, it is undisputed that the inmate was restrained in handcuffs while in the elevator. Consequently, based on the preponderance of the credible evidence, I conclude that Meadows and Gills struck the restrained and compliant inmate in the elevator and that their actions constitute excessive force. The Union asserts that the only possible credible evidence of Meadows engaging in force against the inmate is that he ?elbowed? him in the back on the elevator and that this was ?minor.? I cannot agree. There was other credible evidence against Meadows. But even if the evidence were limited to his driving his elbow into the inmate?s back, that alone would constitute excessive force. There was no justification for it. The inmate was not resisting. He was handcuffed. He posed no threat. It constituted an excessive use of force. The most difficult assessment concerns what happened in the 2B cell. Officer 2?s testimony of what happened is the only viva voce evidence that Beaulieu struck the inmate. According to Officer 2, the inmate was run into the back of the cell, fell limp, placed over a stool and was immediately punched by Van Kuren and Beaulieu in the back of the head and shoulder area. Neither Officer 1 nor Officer 3 saw this. Although Officer 1 told the CISU that he ?believed? that the inmate was run into the back of the 2B cell, he ?wasn?t certain.? Then at the hearing, he stated that he did not recall this. He testified that he could not proceed beyond one step into the cell because of the number of officers there, but he said, in cross examination, that 49 he saw the inmate brought in and placed on the floor. Officer 3 testified that he heard a commotion and heard the inmate crying and groaning but he could not see what was happening before he could enter the cell. Officer 2 also testified about additional punches and kicks to the inmate in the 2B cell, which was refuted by the other two officers. I do note, however, that Officer 1 was not present in the 2B cell when he went to find out whether a cell was available in segregation, and Officer 3 stepped outside of the cell after the inmate had been re-handcuffed. However, they still did not see the inmate being struck before or after Singh punched the inmate. Further, in his police statement, Officer 2 stated that was unable to identify who was punching the inmate after Singh struck him because it was a ?sea of blue.? In light of all of the evidence, I do not find the evidence that punches were thrown by Beaulieu in the 2B cell to be sufficiently clear and compelling. It may very well have happened as Officer 2 testified. In fact, I believe his testimony. But the evidence, given the contradictions of Officer 1 and 3, is not clear and convincing enough to conclude, on a preponderance of the evidence, that Beaulieu struck the inmate in the 2B cell. In so ruling, I do not rely on the Union?s argument that Officer 2 was not credible based on the fact that some of Officer 2?s claims regarding mistreatment by individuals following the revelation that he came forward was refuted by witnesses the Union called. In my view, the rebuttal evidence presented by the Union on these subsequent events does not undermine Officer 2?s credibility with respect to the October 18 incident. It may be that the subsequent events he endured after coming forward (being repeatedly called a ?rat?, being threatened, graffiti, work refusals, avoidance, and worse), coloured his perception of things (and I make no ruling to that 50 effect), but even if so, even if he was wrong about some of those subsequent events, it does not undermine his testimony concerning the events of October 18. Even if he was wrong, I cannot conclude that it establishes that he ?makes things up.? Rather, my conclusion concerning Beaulieu?s actions in the 2B cell is based solely on the fact that Officer 2?s recollection was not corroborated. The Employer argues, however, that I should not just accept the viva voce evidence concerning Beaulieu in the 2B cell, but should also consider the evidence presented by Officer 2 in his statements to the police and CISU that Beaulieu struck the inmate, which occurred only months after the incident, not years. It submits that his recollections shortly after the event should be given weight. In many cases, prior statements can be relied upon to establish ?facts?. Arbitrators may consider hearsay statements, and sometimes, when a witness becomes unavailable for viva voce evidence, there may be a ?necessity? to accept them into evidence for the truth of the matters asserted. But in this case the witnesses were able to give viva voce evidence, which then had the benefit of cross-examination to test the witnesses? recollections. In this situation, in accordance with the approach taken in Government of British Columbia and B.C. Government Employees Union (Correctional Services Component) (1987), 27 L.A.C. (3d) 311 (Hope), at p. 7, I am not comfortable relying on prior statements about assaults which were not confirmed at the hearing. As a result, I cannot find on the preponderance of the evidence that Beaulieu struck the inmate in the 2B cell. There was also no viva voce evidence that he struck the inmate earlier during the escort. 51 3.Was there just cause? A. Gillis and Meadows. As concluded above, I find the evidence to be clear and compelling that the Gillis and Meadows used excessive force on the inmate during the escort on October 18, 2002. A Correctional Officer has ?care, custody and control? of inmates. As a result, they are in positions of trust. As stated by Justice Sparrow in R. v. Sammy [2004] O.J. No. 1850 (Ont. Ct. Justice), at par. 12: ? [P]risoners completely lose their autonomy while in custody; they are dependent on correctional officers for physical protection, communication with others both inside and outside the prison, food, movement and access to medical care and other necessities. Correctional officers must use considerable discretion in their treatment of prisoners; ? while in a cell with prisoners, events can transpire quickly and unnoticed. In my view, although they may not exercise as much power and discretion as some public authorities, they are clearly in significant positions of trust?. This was also recognize by Arbitrator Hope in Re Government of Province of British Columbia and B.C. Government Employees Union (Correctional Services Component),supra at p. 12: ? Assaulting and threatening inmates is one of the most serious offences one can envisage on the part of a corrections officer. Inmates are vulnerable to the integrity and proper conduct of corrections officers in at least two respects. Firstly, the very nature of the custodial function permits a corrections officer to apply force to the person of inmates if circumstances require it, ? If a corrections officer abuses the right to use force the likelihood is that any complaint would founder in a case where it was corrections officers? word against the word of an inmate. That reality gives rise to the second area of vulnerability, being the vulnerability of an inmate?s credibility. One can anticipate that where an allegation of assault comes down to the difference between the word of a corrections officer and the word of an inmate, the word of the corrections officer will carry greater weight for a number of self-evident reasons. The very fact of that vulnerability raises in a corrections officer a significant duty of trust. The employer is entitled to treat a breach of trust as evidence that a corrections officer does not possess the attributes essential to the proper performance of what must be seen on the evidence as a potentially frustrating and 52 provocative role where integrity and self-control are important, even vital, qualities. The GSB, likewise, has recognized that assault of an inmate is just cause for discipline. OPSEU (Collin), supra; OPSEU (Horan), supra; OPSEU (Sindall/Talbot), supra. However, not all assaults on inmates by Correctional Officers will lead to discharge. The Union correctly notes that discharge is not always the outcome in cases of excessive force. It depends on the facts and, in some cases, there may be mitigating circumstances such as provocation, self-defence, or a momentary flare-up. There may be an admission and genuine remorse. See, e.g., OPSEU (Sindall/Talbot), supra; OPSEU (McPhee), supra; Re Government of the Province of British Columbia and B.C. Government Employees Union (Correctional Services Component), supra. In this case, however, in regard to Gillis and Meadows, there are no mitigating factors present. As in OPSEU (Collin), supra, at p. 22 the grievors? ?deceptions and denials went on for years.? The grievors consistently maintained their incredible position that they did nothing to the inmate, saw nothing and heard nothing. This was maintained even after they saw the photographs, and after Van Kuren admitted to his actions in the elevator and the Court found him guilty of assault. They had no explanation at all for the visible injuries that the inmate received. They expressed no remorse at all. The evidence establishes that the grievors knew that the inmate had ?cupped? Officer Smid while they were in 5C. Beaulieu acknowledged this, and there was substantial evidence that officers were informed of this while the inmate was in the 5C interview room. Correctional Officer Patti Graham said this out loud as did OM Coccia. Correctional Officer Carter Yule learned it. The three officers who came forward learned of it in the 5C interview room. It is not 53 reasonable or plausible that Gillis and Meadows, alone, did not learn of it then. Further, immediately upon leaving the escort, Gillis went to check on Officer Smid, who was his friend. So clearly, somewhere during the escort not afterward, he learned that the inmate had assaulted his friend and colleague. The most likely place that he learned of it was in the 5C interview room. It is understandable that the Correctional Officers responding to the all staff would be very angry at the inmate for assaulting an officer. What the inmate did was a very serious infraction. There are, however, established institutional methods to deal with inmate misconduct. Under Section 29 to 32 of Reg. 778, inmates who engage in misconduct may be brought up on charges, and then penalties from solitary confinement and loss of privileges as well as other sanctions may result. The potential penalties, however, do not include physical retribution by officers. They do not include officers personally teaching the inmate a lesson about proper conduct. The evidence is clear that Gillis, Van Kuren, Meadows and probably others were looking for retribution and created the fiction of the inmate?s resisting. In this case, the actions of Gillis and Meadows were an abuse of their power and a complete derogation of their responsibilities. They, along with Paul Van Kuren, beat a restrained and compliant inmate for his assault on Officer Smid. They fundamentally abused their position of power over the inmate. There is no question that the grievors knew what was expected of them by the Employer and had received training on the use of force and their responsibilities to inmates. They knew what they did was wrong, which led to their continual efforts to cover-up what occurred. As stated by Vice-Chair Harris in ReOPSEU (Collin), supra at p. 23, the grievors? ?behaviour strikes at the heart of his duty as a corrections officer to the public, the 54 inmates and his fellow corrections officers. His participation in this assault could not have been more contrary to his obligations.? The same is true here. The Union argues, however, that in other cases of excessive use of force, the Employer has not always discharged the officer and that a key principle of labour relations is that there must be consistency or non-discrimination in the application of discipline. In support, the Union cites to Brown and Beatty, Canadian Labour Arbitration, at par. 7:4414, Discrimination; OPSEU (Jones) and Ministry of Correctional Services (1992), GSB No. 1900/90 (Verity); OPSEU (McPhee), supra. Each case of this nature must be evaluated on its own specific facts. I agree, however, with Vice-Chair Herlich when the same argument was made in OPSEU (Horan), supra at p. 21, where he stated: At the risk of oversimplification, however, I do not accept that this principle [of discrimination] dictates that because the Crown in Right of Ontario qua employer, some 15 years ago, failed to discharge an employee who had engaged in an improper use of force and committed an (albeit relatively marginal type of) assault on a resident or inmate, that the employer is thereby forever precluded from imposing such a penalty for that kind of offence?. In any event, the principle of discrimination and the exercise of discretion to modify a penalty must both be applied and assessed in the particular circumstances of each given case. This case, in my view, is more similar to the situation in OPSEU (Collin) and OPSEU (Horan), supra, where the GSB upheld the termination of officers who engaged in excessive force than OPSEU (Sindall/Talbot) orOPSEU (McPhee),supra, where a different penalty was imposed. In both OPSEU (Collin) and OPSEU (Horan), supra, the Board upheld the dismissal of a Correctional Officer for use of excessive force where the officer ?was subsequently less than 55 truthful about what had taken place.? That fact is important because it fundamentally destroys the trust necessary to be a Correctional Officer. The Union also relies on the decision of the Employer in regard to another case of excessive use of force at Hamilton Wentworth Detention Centre around the same period of time. The Union relies on the discipline imposed on Correctional Officer McMahon, a Correctional Officer at Hamilton Wentworth Detention Centre. The parties stipulated to the facts of that situation. On December 2, 2002, an inmate took aggressive action against McMahon which required staff to enter the area to assist in restraining the inmate. After that inmate was placed in his cell, another inmate assaulted McMahon by punching him in the face. Force was used by a number of officers to control that inmate. The first inmate was then relocated to segregation. During the escort, the inmate was not restrained and actively resisted. As a result, force was ultimately used by several officers to control the inmate. McMahon did not complete an accurate Occurrence Report, but during the ensuing internal investigation, he admitted that he had struck the inmate once in the head during a period of active resistance by the inmate. He was found to have struck the offender with a closed hand strike to the side of the head as a distraction technique. This was found to be an unacceptable practice and excessive force. He was also found to have failed to report the full extent and type of force used on the inmate in his Occurrence Report and that he failed to remain at his post, as directed. He was suspended for a period of one month. In my opinion, the McMahon case is completely distinguishable. The inmate there was not restrained and was actively resisting. Here, the inmate was, after a brief period in the 5C 56 interview room, restrained in handcuffs the entire time. Nor was he actively resisting. Unlike the grievors, McMahon admitted his use of force and acknowledged that he failed to meet the requirements to provide an accurate Occurrence Report. Here, the grievors? have admitted to nothing ? they heard nothing, saw nothing, did nothing. The Union further argues that the grievors? conduct is mitigated by the fact that it was condoned by management, particularly by OM Singh. The evidence clearly establishes that when the inmate, in the 5C interview room, said he was ?not resisting,? OM Singh replied that he was going to ?continue to resist? all the way to segregation. OM Coccia, despite her explanation at the hearing that she only meant that there were too many officers in the room, realized what was happening when she said, ?that?s enough boys.? She realized, as she told the CISU, that the officers were getting out of hand and it was likely that excessive force was being applied. OM Singh further encouraged what occurred by his silence in the elevator. It was patently obvious in the elevator that the inmate was getting assaulted, but he did and said nothing. Nor did anyone else. Yet they all had a duty to stop it. They all had a duty of care to the inmate. Even though the Union is correct that OM Singh?s conduct encouraged the grievors? actions, I conclude that Singh?s conduct does not absolve the grievors in this case. That is because the grievors, as Correctional Officers, knew that their actions in regard to the inmate were wrong. Everyone present knew it. They had been trained on the use of force and their obligations as Correctional Officers. They had independent obligations, under law, to protect the inmate. There is no uncertainty about the Employer?s expectations here or what was proper conduct. What was expected and required was clear. Further, the assault on the inmate started 57 prior to OM Singh?s comments. Consequently, OM Singh?s actions do not lessen what the grievors? did. Accordingly, for all of these reasons, I conclude that the Employer established, on clear and cogent evidence, all of the allegations set forth in the letter of discharge against Gillis and Meadows. Their grievances asserting unjust dismissal are dismissed. B. Beaulieu As set out above, I conclude that the evidence, in its entirety, is not sufficiently clear and compelling to establish that Beaulieu struck the inmate during the escort. The Union asserts that without a finding that he used excessive force, there is no just cause for discharge. It points to the other Correctional Officers involved in this incident who received suspensions for their actions, but not discharge. Again, it asserts that a primary tenet of discipline is consistency and that the Employer may not discriminate in regard to the penalties imposed. The Employer asserted that if I concluded that there was insufficient evidence to establish that a grievor did not use excessive force, the grievor should not be reinstated, but awarded damages in lieu of reinstatement. The Employer asserts that because after all that has occurred, the employment relationship has been irretrievably broken.DeHavilland Inc. and C.A.W.- th Canada, Local 112 (Mayer) (1999), 83 L.A.C. (4) 157 (Rayer); Re U.S.W.A., Local 12998 and Liquid Carbonic Inc.[1996], 29 O.R. (3d) 468 (Ont. Div. Ct.); Re Doughty Concrete Products th Ltd. and C.E.P.U., Local 294(B) (1996) 59 L.A.C. (4) 289 (Hunter). On the facts of this case, even though damages in lieu of reinstatement is an extraordinary remedy, I agree with the Employer that this is not an appropriate case to reinstate Beaulieu. 58 Because of Beaulieu?s actions in this case, the employment relationship has been irretrievably broken. He was an active member in the escort. He continuously tried to cover up what occurred and mislead the investigator and the employer. His deception continued before this Board. There was not a scintilla of recognition regarding his own actions and breach of responsibility. There was not a scintilla of remorse for what occurred to the inmate or the three officers who came forward. Even after Van Kuren admitted to assaulting the inmate and the Court found him guilty, Beaulieu did not admit that he saw it or heard it. In these circumstances, I have no confidence that Beaulieu has learned anything from what occurred, nor do I have any confidence that he would act differently in the future if reinstated. As a result, the trust that was broken by Beaulieu?s actions is not reparable. My conclusion that reinstatement is not appropriate because of Beaulieu?s actions is not a further ?punishment? for his actions and untruthfulness, but a recognition that his actions have destroyed the trust necessary to be a Correctional Officer. I will leave it to the parties to determine the amount of damages to be given to Beaulieu in lieu of reinstatement, but I would note that at the time of the incident, Beaulieu had approximately two years of service as an unclassified employee. 4.The Suspension Grievances. The Union asserts that the Ministry failed to properly pay the grievors while they were suspended with pay during the investigation. It asserts that the grievors were not paid overtime and the unclassified grievors did not receive pay for statutory holidays, which, in the normal course of things, they would have worked and therefore received. It argues that the evidence establishes that the grievors normally worked overtime and some statutory holidays, and therefore asserts that this claim is not speculative. In support of its contentions, the Union cites 59 toOPSEU (Lattimer) and Ministry of Community Safety and Correctional Services (2004), GSB No. 1995-0131 (Kaufman); OPSEU (Hyland) and Ministry of Correctional Services (2003), GSB No. 1470/91(Petryshen). The Employer argues that the Union?s contention that the grievors were somehow ?hard done by? by the Employer because they were not paid for overtime and for statutory holidays is ludicrous. It asserts that whether they would have worked overtime and statutory holidays is speculative, and the Ministry?s failure to pay for it does not violate the collective agreement or any statute. It argues that the grievors were suspended with pay, based on serious allegations of excessive use of force, pursuant to Section 22 of the Public Service Act which authorizes the Minister to suspend an employee with or without pay. In this case, for the relatively short period of the investigation, they were suspended with pay and are not entitled to more. In support of its position, the Employer cites to OPSEU (Press) and Ministry of Health and Long-Term Care) (2007), GSB No. 2003-1461(Mikus). Section 22 of the Public Service Act, 1990 R.S.O. states as follows: Suspension, removal, dismissal and release. Suspension pending investigation . 22. (1) A deputy minister may, pending an investigation, suspend from employment any public servant in his or her ministry for such period as the regulations prescribe, and during the suspension may withhold the salary of the public servant. InOPSEU (Press), supra, the grievor had been suspended with pay pending investigation of allegations of patient abuse. Ultimately he was cleared of all allegations and returned to work. However, the Union claimed that as a result of the Employer?s actions, the grievor suffered public humiliation, emotional distress and irreparable damage to his life. In a thoughtful 60 decision, the Vice-Chair dismissed the grievance. She concluded at p. 49 that under the facts, it was ?not unreasonable for the Employer to decide that the most suitable course of action would be to send these employees home until the allegations could be disproved or substantiated.? She compared the facility ? a psychiatric hospital ? to a correctional institution and noted that it is not usual for there to be complaints from patients about their keepers. She stated at p. 50: In this day and age the public expect professionals to be accountable for their actions. Allegations of this nature must be investigated thoroughly and promptly and, sometimes, there is a cost involved, a cost that is most often borne by the professionals involved in caring for the accusers. While it is important to balance the interests of the staff and the patients in dealing with these situations, it is inevitable that one of the burdens of being a professional caregiver in this environment is the acceptance that allegations of this nature must be examined independently and impartially without the assistance or interference of the accused. In the instant case, the Employer had no alternative but to investigate the allegations and, in my view, did so in a logical and practical manner having regard to the nature and severity of the allegations. ? Likewise, in this case, the Employer acted reasonably in suspending the grievors with pay, pending investigation. It paid the grievors their normal pay, but did not include premium payments such as overtime and statutory holidays. I find no violation of the collective agreement or statute in the Employer?s action. The cases cited by the Union are distinguishable. In OPSEU (Lattimer), supra, and OPSEU (Hyland), supra, the Board was determining what was included in ?make whole? relief after finding that the Employer had violated the collective agreement. That situation is not present here. Accordingly, these grievances are dismissed. 61 Conclusion Counsel for the Ministry asked that this decision ?send a message? about the code of silence ? a message that it is wrong and should be abolished. I have my doubts whether a decision could deliver an effective message to that effect, given the extent to which the culture of ?staying solid? is so ingrained in the corrections culture. Each of the officers who came forward testified about the treatment they have received at the hands of fellow officers. The extent of the abuse they have received is shocking. My concern is that this decision, which outlines some of the experiences that the three officers endured here, may only further discourage employees who, in good conscience, may want to come forward. The code of silence is so pervasive that it would take a concerted and sustained effort by management and the Union to address it. Management also has to consider its responsibilities here. Management may have to reconsider whether its approach to the Code of Silence is effective. In this case, there were a number of Correctional Officers who were suspended, in part, for writing misleading Occurrence Reports and lying during the investigation, i.e., for following the Code of Silence. After serving their suspensions, however, those officers returned to their normal work lives and life, as they knew it, went on. The same is certainly not true for the three individuals who came forward. The repercussions for them have not ended. The former wife of one of the officers who came forward testified that she was ?proud of him for telling the truth?. She believed that it took a ?big person to tell the truth when there?s a Code of Silence.? But when asked if it had been worth it, given all that followed, she said, ?I don?t think it was.? As long as that remains true ? as long as those as those who come forward are punished more effectively than those who follow the code of silence ? the code will continue to exist, and the abuses that are enabled by code of silence will also continue. 62 Likewise, the Union might have to reconsider its actions. To be sure, it has a duty of fair representation but it has a position of leadership which it can use to limit, if not eliminate, the Code of Silence. In every respect this is a very sad case. The inmate suffered an unnecessary beating. The grievors have suffered the loss of their careers and reputations and have suffered financially. The officers who came forward have suffered significantly as well. The Ministry and the Union have spent an enormous amount of time and money on this and related litigation. It is truly unfortunate that when faced with what the inmate did on October 18, the grievors chose to exact retribution. It was that choice, and the continuous deception that followed, that led to these sad results which have profoundly affected so many lives. 1.The Employer had just cause to discharge Correctional Officers Greg Gillis and Jason Meadows. Their grievances alleging unjust discharge are dismissed. 2. The Employer did not have just cause to discharge Rene Beaulieu but reinstatement is not appropriate. He is entitled to damages in lieu of reinstatement, keeping in mind that at the time of the incident he had approximately two years of service as an unclassified employee. 3. The suspension with pay grievances are dismissed. th Issued at Toronto this 16 day of May, 2008. Randi H. Abramsky, Vice-Chair