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HomeMy WebLinkAbout2019-0765.Vetsavong.21-01-11 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2019-0765 UNION# 2019-0234-0156 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Vetsavong) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Ian Anderson Arbitrator FOR THE UNION Dan Sidsworth Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Caroline Cohen Treasury Board Secretariat Legal Services Branch Senior Counsel HEARING October 5, 2020 - 2 - Decision [1] The Grievor received a 10 day suspension as a result of an incident in which he used “OC Spray” on an inmate. The Union disputes that any discipline was warranted and in the alternative takes the position that the discipline imposed was too severe and ought to be reduced. [2] The grounds relied upon by the Employer in imposing the discipline are stated in the disciplinary letter: 1. That you used unnecessary and excessive force when you deployed MK-3 Oleoresin Capsicum (OC) Foam [OC Spray] on an inmate who was in a position of disadvantage on the unit floor. 2. You failed to deploy OC Spray at a minimum distance of three feet as per Ministry Policy. 3. You were not truthful or forthcoming in you [sic: your] use of force Occurrence report and addendum regarding the incident and your rationale for using and deploying the OC Foam. [3] The letter of discipline was issued by Acting Deputy Superintendent Santos. It relates to a physical altercation between an inmate I shall refer to as Inmate L and an inmate I shall refer to as Inmate S. Deputy Santos gave evidence on behalf of the Employer. He did not directly witness the incident. Deputy Santos’ evidence was that he “reviewed all the occurrence reports, the client profile, the photographs and the video of the incident”. He signed off on the Use of Force Local Investigation Report (“LIR”) and referred it to the Superintendent. Deputy Santos determined that a 10 day suspension was appropriate following consultation with the Superintendent, the Deputy Regional Director and Labour Relations. The Grievor gave evidence on behalf of the Union. The evidence in chief took the form of declarations supplemented by oral testimony. Allegation 1: That you used unnecessary and excessive force when you deployed MK-3 OC Spray on an inmate who was in a position of disadvantage on the unit floor. [4] The Employer’s Use of Force Policy provides: 3.1.4 No employee shall use force against an inmate unless force is required in order to enforce discipline and maintain order within the institution; defend the employee or another employee or inmate from assault; control a rebellious or disturbed inmate; or conduct a search (see Searches) - R.R.O. 1990, Reg. 778, s. 7(1). 3.1.5 Force must always be the action of last resort. The amount of force used must only be that amount needed to control a situation. When there is a decision to use - 3 - force, it must be used in compliance with the law, good judgment, and Ministry policy, procedures and training. 3.1.6 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 - R.R.O. 1990, Reg. 778, s. 7(2). [5] The issue between the parties is not whether force was required but rather whether the force chosen, the OC Spray, was unnecessary or excessive in the circumstances. [6] In his declaration, Deputy Santos stated: 8. The inmate [Inmate L] was in a position of disadvantage, lying supine on the floor. The grievor entered the area with other staff. At the time the grievor sprayed the inmate on the floor with oleoresin capsicum spray (“OC Spray”), the inmate [Inmate S] who had been on top of that inmate had gotten up from the floor and was backing away. The grievor sprayed the inmate from less than three (3) feet away, approaching the inmate quite closely. 9. The inmate only started kicking at the same time the grievor sprayed her. The grievor would not have seen her kicking at the time he made the decision to spray her. She was on the floor and was therefore not in a position to cause significant harm to either staff or inmates. Moreover, her size, strength, gender, physical capability and history did not indicate she posed a threat. He ought to have explored ways to gain physical control of her such as soft physical techniques prior to resorting to using OC spray. [7] In cross-examination Deputy Santos indicated that when considering discipline he had reviewed the videos several times to make sure he was making the “correct assessment”. He stated he believed that Inmate L was kicking prior to being sprayed with the OC Spray. When directed to paragraph 9 of his declaration, in which he stated the opposite, he stated he “believed that might have been correct at the time of the assessment”. He maintained, however, that the Grievor should have first attempted soft physical techniques prior to resorting to the use of OC Spray. [8] The Grievor’s evidence was that he heard someone yelling a fight was happening in the unit, and responded by going to the unit door. From the door he could see Inmates L and S engaged in a physical altercation. He stated it was common for a correctional officer to have his or her OC Spray out of its holster and in hand when responding to incidents of this sort. He testified he observed Inmate L kicking twice prior to using the OC Spray foam. He also testified that on two occasions prior to using the OC Spray he yelled out “stop or I will spray”. This evidence was - 4 - not contradicted. In cross-examination he acknowledged that Inmate S had backed away at the point he used the spray on Inmate L, but denied the fight was over. He noted that Inmate L continued to kick twice and stated that he had been involved in altercations before in which one inmate continued to strike another inmate whom he was restraining. He stated Inmate L was about the same size as himself, he was unable to comment on her strength, but believed she had been in altercations within the facility before. He stated he did not first try to use soft physical techniques because he did not want to be kicked. In re-examination he stated there was nothing in the use of force training which stated that soft techniques had to be used prior to use of OC Spray. [9] Deputy Santos was recalled to address certain points in the Grievor’s evidence. Deputy Santos testified the Grievor’s statement that it was common for a correctional officer to have OC Spray unholstered and in hand when responding to situations was not accurate, but added that there are situations in which it is appropriate to have OC Spray unholstered and in hand, including when inmates fail to respond to commands from an officer and continue to fight. Deputy Santos initially appeared to state that the Grievor had not issued commands, but then conceded that it appeared he had. Deputy Santos also disagreed with the Grievor’s statement that there was nothing in the use of force training which stated that soft techniques had to be used prior to use of OC Spray. This statement, however, was qualified as Deputy Santos elaborated on the use of force model, which he described as involving a process of assessing, planning and acting in which soft techniques are to be “considered” prior to moving on to the use of OC Spray. He was then asked whether there was an expectation that soft physical techniques would be used prior to OC Spray. He responded “depending on the severity of the situation, yes”. I infer that in Deputy Santos’ view, there are circumstances in which it would not be expected that soft physical techniques be attempted prior to the use of OC Spray. He went on to state that in this instance it was his assessment that soft physical techniques should have been used first because the inmates were separated and “were not combative with each other or anyone else”. [10] The degree to which the inmates were combative or, as reframed by the Union in argument, compliant, is the key issue in this proceeding. The Grievor’s evidence was that the fight was ongoing. Deputy Santos’ evidence that the inmates were no longer combative is based on his viewing of the video. In that respect, he stands in no better position than I. The video clip of the incident was entered into evidence. I have reviewed it several times. The video clip does not have audio. - 5 - [11] The video shows the day room of a cell block. A number of inmates can be seen seated at separate tables. Inmate L and Inmate S, are seated at separate tables but facing each other. They are approximately 12 to 15 feet apart. Inmates L and S rise from their seats at approximately the same time and Inmate L runs at Inmate S. They start grappling, punching and kicking at each other. Inmate S succeeds in throwing Inmate L to the ground beneath or beside a table. The table largely obstructs the view of Inmate L. Inmate S appears to be kneeling on top of Inmate L and can be seen to continually punch down towards Inmate L. Inmate L’s feet can be seen kicking upwards towards Inmate S. I would note that it would be surprising in the circumstances if she were not. [12] The first of what is ultimately at least nine correctional officers can then be seen entering the field of view from the centre bottom of the screen. The first officer is officer Manning. The Grievor is the second officer to be seen, entering the field of view almost at the same time as officer Manning. He comes in from the bottom left hand corner. He has his OC Spray out of its holster and in his right hand as he enters the field of view. Other correctional officers enter the field of view within the same fraction of a second as officer Manning and the Grievor. Just before the officers enter the screen, Inmate S looks up from Inmate L in the direction from which some of the officers will enter, stands up, and then backs away, towards another table. Inmate L continues to kick and Inmate S stumbles slightly while backing away. [13] Officer Manning runs directly towards a gap between the table under which Inmate L is located and another table. The Grievor also runs towards Inmate L. Inmate S is on the other side of Inmate L, further away from both officer Manning and the Grievor. Both the Grievor and officer Manning are looking down towards Inmate L as they approach, who continues to kick. The Grievor sprays Inmate L when he reaches her. There is no pause in his motion before doing so. As the Grievor sprays Inmate L, officer Manning steps over the legs of Inmate L and the seat of an adjacent table while shifting his focus to Inmate S. He reaches Inmate S, places his hands on her arms and directs her away from the scene. [14] The inmates fought for about 13 seconds prior to Inmate S standing up. The Grievor sprays Inmate L within three and a half seconds of when Inmate S first started to stand up and within two seconds of when he entered the field of view. [15] Over the course of the next seven or eight seconds, the Grievor looks up towards Inmate S, raising his OC Spray and pointing it towards her as he does. Officer Manning has control of Inmate S by then and is leading her away. At the same - 6 - time the Grievor is joined by another CO, who is between him and Inmate L. The Grievor looks back down at Inmate L who has stopped kicking. As other COs arrive and the other inmates move towards their cells, he re-holsters his OC Spray. While not on the video, there is no dispute that the Grievor then followed procedure in assisting Inmate L in removing the OC Spray from her eyes. [16] The Employer argues that there is a continuum with respect to force options. The Employer notes that the Use of Force Guidelines (the “Guidelines”) distinguish between situations in which use of force is considered “routine” and those in which it is “not routine”. OC Spray Foam is listed as a “not routine” use of force. OC Spray Foam falls quite far down the list of force options contained in the Guidelines, which also note that OC Spray is a prohibited weapon. The Employer makes reference to the continuum illustrated in the “Use of Force Management Model” (2016) schematic contained in training materials provided to correctional officers. It notes the concentric rings of responses, in which the blue ring (staff presence, verbal intervention, tactical communication, negotiation / diffusion skills) is reached before the yellow ring (physical handling (soft), physical handling (hard), restraints, aerosol spray, chemical agents, impact weapons). The Employer argues it is improper to jump on the continuum to aerosol spray without first trying soft and hard handling techniques. [17] The Union notes that use of physical handling (soft), physical handling (hard), restraints, aerosol spray, chemical agents, impact weapons all appear in the yellow ring of the Use of Force Management Model. The Union argues there is no sequential order to these steps and that it is up to an individual correctional officer to determine which level of force will be used. The Union also notes the training materials with respect to the use of OC Spray indicate that it may be used to distract, disorient, disrupt activities, disperse or disable. It argues any number of these uses have application to stop an inmate from fighting, in particular where the fight is occurring in a day room with other inmates (who are potential combatants) present. The Union notes the training materials actually give two inmates fighting as an example where OC Spray may need to be deployed. The Union also notes that section 7(1) of Regulation 778 to the Ministry of Correctional Services Act authorizes correctional officers to use force to enforce discipline and maintain order within the institution, defend the employee or another employee or inmate from assault, or to control a rebellious or disturbed inmate, among other things. [18] I note OC Spray is a prohibited weapon, but one which correctional officers are authorized to use in appropriate circumstances. In my view, as a matter of common sense, the use of OC Spray cannot be considered routine. The - 7 - distinction in the Guidelines between routine and not routine use of force, however, relates to the triggering of the Local Investigation Protocol. Routine use of force (e.g. the application of restraints to a compliant inmate during escort and other similar listed circumstances) does not trigger the Protocol. Use of force which is not routine does trigger the Protocol and results in the generation of a Local Investigation Report (“LIR”), as was the case here. The purpose of the investigation is to ensure that non-routine use of force is reviewed to ensure that its use was appropriate. There is no presumption that it was not. [19] I agree with the Union there is no sequential ordering in the training materials of the types of force listed in the yellow ring (physical handling (soft), physical handling (hard), restraints, aerosol spray, chemical agents, impact weapons). I disagree, however, with the Union’s suggestion that as a result, a correctional officer may simply choose which of those types of force to use. I also disagree with the Employer’s suggestion that there is an obligation to attempt lesser levels of force before use of a given level of force can be considered reasonable and not excessive. [20] A correctional officer’s choice of force is subject to the obligation set out in section 7(2) of Regulation 778: 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. This obligation effectively gives rise to a continuum with respect to the amount of force which may be used against an inmate. For example, depending on the nature of the threat posed by the inmate and all other circumstances of the case, use of soft handling techniques may be reasonable and not excessive, where use of OC Spray would not be. Unsuccessful use of a lesser level of force is a factor to consider in assessing whether use of a higher level of force was reasonable and not excessive, but it is not a precondition. It is not difficult to think of examples in which requiring an officer to attempt lesser levels of force prior to using a higher level of force would significantly increase the risk of injury to the inmate, the officer or others. Finally, the requirement that the force be reasonable means that an officer’s choice of force is to be assessed on an objective standard having regard to nature of the threat and all other circumstances. The training received by officers is one such circumstance. [21] I turn now to consider the evidence in this case. - 8 - [22] I conclude Inmates L and S were involved in a physical altercation at the time that the Grievor entered the day room. The Grievor called out twice that he would use the spray if they did not stop. While Inmate S disengaged from Inmate L following the arrival of officers in the day room, it is not possible to tell whether she did so immediately after being commanded to do so or only after some delay. In any event, Inmate L continued to kick as Inmate S was disengaging and while the Grievor and officer Manning were approaching Inmate L. In particular, Inmate L continued to kick as officer Manning was stepping over her, notwithstanding the fact that she was supine on the floor. The Grievor then sprayed her. All of this took place within a matter of a few seconds. I note as well that the training on OC Spray provided to officers by the Employer contemplates its use when two inmates are fighting. [23] There are other relevant facts, but I place less weight upon them. For example, Inmate L was approximately the same size as the Grievor and was someone whom he believed had been involved in altercations before. There were also a number of other inmates present, who could have become potential combatants. But this is counterbalanced by the fact that there were also a number of other correctional officers present who could assist in gaining control. [24] In these circumstances, was the Grievor’s use of OC Spray Foam on Inmate L not excessive and objectively reasonable? [25] The Employer argues that when the Grievor used the OC Spray, Inmate L was lying on her back and not a threat. The Employer asserts that the Grievor used the OC Spray at the same time or perhaps an instant before Inmate L kicked towards Inmate S who was being removed. The Employer argues that the Grievor would barely have had time to register the kick and that he was ready to use the OC Spray regardless of the actions of Inmate L, as evidenced by the fact that he ran towards her with the OC Spray unholstered. [26] In my view, this argument is not supported by the evidence. Inmate L was kicking out at Inmate S for several seconds prior to the Grievor arriving by her side. Thus, the Grievor had plenty of time to register the fact that Inmate L was kicking. The Grievor issued two verbal warnings to stop or he would spray, but Inmate L continued to kick, including after Inmate S stood up and backed away. Inmate L’s kicking may not have been directed towards officer Manning, but it did impede him in reaching Inmate S. Inmate L did not stop kicking until sprayed. These facts do not support the characterization of Inmate L as simply lying on her back and not posing a threat. - 9 - [27] The Employer argues the Grievor should have first attempted soft physical techniques, as officer Manning did, prior to using the OC Spray. [28] This argument ignores the difference in behaviour of Inmate S and Inmate L. Inmate S had disengaged from the fight and was backing away at the point in time officer Manning reached her and used soft physical techniques. Inmate L was still actively kicking out at the point in time the Grievor reached her. [29] I discount Deputy Santos’ evidence that in his assessment the use of the OC Spray by the Grievor was not necessary and excessive. That evidence was predicated on the assumption that the Grievor had not first issued oral commands to the inmates to stop fighting and that Inmate L only started kicking after the Grievor used the OC Spray on her. Neither was the case, as Deputy Santos appeared to concede in other parts of his evidence. I am unable, therefore, to give any weight to his assessment as critical assumptions on which it was based are not made out. [30] Deputy Santos’ evidence invites the inference that in his assessment use of OC Spray would be justified on the facts as I have found them to be: the Grievor first issued oral commands and Inmate L, at least, was still fighting. In any event, I note that the Employer’s training materials specifically contemplate the use of OC Spray in the circumstance of a fight. In the result, I am unable to conclude that the Grievor’s use of OC Spray was objectively unreasonable and excessive in the circumstances. Accordingly, I find the Employer has failed to prove the first allegation. Allegation 2: You failed to deploy OC Spray at a minimum distance of three feet as per Ministry Policy. [31] The Grievor’s evidence was that he deployed the OC Spray on Inmate L’s face from a distance of approximately four feet. The only other evidence was the video. In the video, a table obstructs the view of everything but Inmate L’s feet when she is kicking. It is simply not possible to tell the distance from which the OC Spray was deployed in relation to Inmate L’s face from the video. Accordingly, I find the Employer has failed to prove the second allegation. Allegation 3: You were not truthful or forthcoming in your use of force Occurrence report and addendum regarding the incident and your rationale for using and deploying the OC Spray. - 10 - [32] The Employer’s argument is in essence that the occurrence reports filed by the Grievor were inaccurate. The occurrence reports are consistent with the facts as I have found them and thus not inaccurate. The occurrence reports also set out the Grievor’s rationale for deploying the OC Spray: to stop the fight. Accordingly, I find the Employer has failed to prove the third allegation. Conclusion [33] For all of the foregoing reasons, the grievance is allowed. The Employer is directed to rescind the discipline and to make the Grievor whole. I remain seized should there be any issues arising from those directions. Dated at Toronto, Ontario this 11th day of January, 2021. “Ian Anderson” ________________________ Ian Anderson, Arbitrator