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Home My WebLink AboutP-2017-1547.Dunscombe.22-02-04 Decision Public Service Grievance Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission des griefs de la fonction publique Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 PSGB# P-2017-1547 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE OF ONTARIO ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Dunscombe Complainant - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Andrew Tremayne Vice Chair FOR THE COMPLAINANT Andrew Camman Polishuk Camman & Steele Counsel FOR THE EMPLOYER Stewart McMahon, Counsel (until December 31, 2020) Caroline Cohen, Senior Counsel (after January 1, 2021) Treasury Board Secretariat Legal Services Branch Counsel HEARING March 27, May 23 and 24, June 25, November 9 and 23, 2018; January 15, April 1, May 10, July 25, November 15 and 19, 2019; January 21 and 26, February 25, March 2, 18, 23 and 25, June 2, 15 and 30, 2021 - 2 - Decision [1] This decision deals with the complaint of Trevor Dunscombe, who is contesting the termination of his employment as a Deputy Superintendent with the Maplehurst Correctional Complex (“Maplehurst”). He was dismissed for cause on July 27, 2017, after an investigation into a series of events at Maplehurst in early September 2015. These events led to an investigation by Correctional Services Oversight and Investigation (“CSOI”). Mr. Dunscombe’s employment was terminated because of his role in the events and for making false statements during the CSOI investigation. [2] The events relate to allegations that an inmate at Maplehurst received preferential treatment while he served what turned out to be a brief custodial sentence from September 3 to 11, 2015. This inmate was (and remains) employed by the Ministry of the Solicitor General (the “Ministry”) as a Correctional Officer. He was known to Mr. Dunscombe because they had worked together several years earlier at another institution where they were both members of the Institutional Crisis Intervention Team (“ICIT”). In this decision I will refer to this inmate as “V”. [3] Mr. Dunscombe was the Deputy Superintendent on call when V was admitted to Maplehurst on September 3, 2015, which was the Thursday before the Labour Day weekend. The Superintendent of Maplehurst, Mark Parisotto, was away on annual leave. Mr. Dunscombe was the senior ranking manager throughout V’s incarceration at Maplehurst. [4] It was not disputed that V received preferential treatment and that most of it came from front-line staff, namely Correctional Officers and Sergeants. Mr. Dunscombe’s role in all of this was difficult to determine at times, but the central theme of the Employer’s case is that Mr. Dunscombe set the stage for V’s preferential treatment with several breaches of policy soon after V arrived at Maplehurst. He then allegedly turned a blind eye and failed to take steps to correct the situation as evidence of more preferential treatment piled up. - 3 - [5] Employees of the Ministry are expected to identify situations where their private interests may be incompatible or in conflict with their workplace duties and responsibilities and file a Conflict of Interest Declaration (“COI”) when they arise. One of the grounds for the termination of Mr. Dunscombe’s employment is that he failed to file a COI when V arrived. It is also alleged that during the investigation by CSOI, he falsely stated that he had filed a COI. These allegations were later withdrawn when a COI signed by Mr. Dunscombe surfaced during the hearing. [6] The investigation by CSOI into the preferential treatment of V included conducting almost 50 interviews, viewing many hours of video footage, and reviewing many documents. As a result of V’s preferential treatment and the ensuing investigation, roughly 25 Ministry front-line staff and supervisors at Maplehurst (18 Correctional Officers and 7 Sergeants) received either a letter of counsel, a verbal or written reprimand, or a suspension. Most suspensions were 1 or 2 days, although one employee received 10 days. At least one front- line supervisor retired before discipline could be imposed. Mr. Dunscombe was the only Ministry employee whose employment was terminated, but the events at Maplehurst in early September 2015 had wide-ranging repercussions for many people who worked there. [7] Counsel for Mr. Dunscombe raised many concerns about the fairness of the investigation by CSOI and the fairness of the allegation meeting. Those processes are quite different from an adversarial proceeding before the Board. Typically, unless the parties agree otherwise, an investigation report has limited use in a hearing because it provides evidence only of the basis (in whole or in part) for an employer’s decision to discipline an employee. An investigation report is not proof of the “facts” underlying the events. Parties before the Board are obliged to prove their cases based on facts either agreed-to or established by admissible evidence through the testimony of witnesses who are examined and cross- examined under oath. [8] At the same time, the Board has consistently held that a hearing provides a complainant with a full opportunity to present all relevant evidence to challenge the employer’s decision and that this cures any defect in the process that led, in this case, to the termination of - 4 - employment. In other words, this decision is based on the evidence presented by the parties and not on the findings of the CSOI report. [9] However, in this matter, it was necessary to delve more deeply than usual into the details of the investigation by CSOI. This is because one of the grounds for Mr. Dunscombe’s dismissal is that he made false statements during that investigation. The CSOI Report is a 30-page document that includes the inspector’s analysis and findings. The Appendices to the Report consist of hundreds of pages of witness and subject interview letters, interview summaries, transcribed excerpts of recorded interviews, as well as copies of log books, rosters, forms, and many other documents. The Report and its Appendices were admitted as an exhibit at the hearing. However, the interview summaries and transcribed excerpts of the recorded interviews were not admitted as evidence of the facts found within them (i.e., not for proof of their contents), except where the interviewee was called as a witness at the hearing. For some witnesses, where no transcript of their interview was available, excerpts from the audio recording of that witness’s interview were played at the hearing. Early in the proceedings, the parties’ counsel and I went to Maplehurst and viewed the areas where most of the events involving V took place. [10] The Employer called 10 witnesses to testify at the hearing. They included 5 of Mr. Dunscombe’s former co-workers working at Maplehurst while V was in custody: Sgt. Shari Core (who is Mr. Dunscombe’s spouse), Deputy Superintendent (DS) Tanya Frankovich, Acting Records Manager (RM) Sandra Allain, Sgt. Joanna Gallagher, Correctional Officer (CO) Brendan Black. The Board also heard testimony from Deputy Regional Director (DRD) Lou-Ann Lucier, who spoke with Mr. Dunscombe at the time of V’s admission to Maplehurst; Nadia Franzon, one of two inspectors who worked on the CSOI investigation; Deputy Regional Director (DRD) Doug Houghton, who conducted Mr. Dunscombe’s allegation meeting; and the Superintendent of Maplehurst, Mark Parisotto. V also testified at the hearing. [Note: the list above shows the position held by each witness in September 2015.] [11] Most of the witnesses who gave evidence at the hearing and who were previously interviewed as part of the investigation by CSOI were asked if they had reviewed a copy of - 5 - the transcript of their recorded interview and agreed to adopt it as part of their evidence. At the hearing, many witnesses also gave evidence about matters not touched on in their CSOI interviews. All witnesses were extensively cross-examined. [12] As the Complainant, Mr. Dunscombe was present throughout the proceedings and heard the evidence of all of the Employer’s witnesses. He testified at the conclusion of the hearing and was the only witness who appeared on his behalf. [13] This decision is organized into 6 main sections: an overview; the evidence about Mr. Dunscombe’s role in the events that occurred at Maplehurst from Sept. 3 to 11, 2015 during V’s incarceration; the evidence about Mr. Dunscombe’s interview during the CSOI investigation; the evidence about the allegation meeting and the employer’s decision to dismiss Mr. Dunscombe for cause; the parties’ submissions; and the analysis and findings. [14] Counsel for Mr. Dunscombe concedes that the employer had cause for discipline. He asks that the termination be rescinded because the misconduct did not warrant dismissal and that there are enough mitigating factors to justify reinstatement. The employer maintains that termination for cause was appropriate in light of all relevant considerations. The issues to be determined are: a. What was the extent of Mr. Dunscombe’s misconduct? b. Was dismissal the appropriate response, and what, if any, mitigating factors are relevant? c. If dismissal was an excessive response, what discipline is appropriate? Overview [15] Mr. Dunscombe joined the Ministry of Community Safety and Correctional Services (now the Ministry of the Solicitor General) in 2001 as a Correctional Officer at Toronto West Detention Centre. He received several promotions while at Toronto West, where he remained until early 2015, at which time he moved to Maplehurst as the Deputy Superintendent, Operations. - 6 - [16] On Thursday, September 3, 2015, V was convicted of a driving offence and sentenced to 30 days’ custody. The trial took place at the Guelph Ontario Court of Justice. The Court endorsed the Warrant of Committal (“WOC” or the “Warrant”) with a recommendation that V’s sentence be served “in a facility other than one in the GTA” because his employment as a CO with the Ministry raised concerns about his safety. Individuals remanded and sentenced in Guelph are automatically taken to Maplehurst, at which point a transfer between institutions can occur. [17] V was taken to Maplehurst. The Labour Day weekend was coming up. The Superintendent of Maplehurst, Mark Parisotto, was away on annual leave, and Mr. Dunscombe was the on-call Administrator. Mr. Dunscombe spoke to DRD Lou-Ann Lucier by phone about V’s arrival and incarceration. The number of times they spoke and precisely what was said was a major point of contention between the parties, although it is not disputed that, generally speaking, the calls were about V and whether and for how long he should remain at Maplehurst, among other things. For a while during the hearing, whether or not Maplehurst was “in the GTA” and whether this was generally known was a point of contention, and questions about this were put to some of the employer’s witnesses. However, as it started to become clear that the main issue was whether Maplehurst was an appropriate place for V to be incarcerated regardless of whether or not it was in the GTA, this matter receded into the background, and the location of Maplehurst was not addressed in the parties’ final arguments. It also became clear that Mr. Dunscombe had the authority, on his own, to transfer V out of Maplehurst in consultation with the receiving institution. [18] V arrived at Maplehurst, and while he was still in the Admitting and Discharge (“A&D”) area, Mr. Dunscombe went to see him. Whether they met before or after V had been formally admitted to Maplehurst, the number of times they met that day and for how long, and what they said to each other was another major point of contention between the parties. [19] It was not disputed that Ministry staff gave V preferential treatment following his admission into custody. The preferential treatment included allowing V to change into - 7 - civilian clothing and spend the day in the A&D area, where he could use staff amenities, including washrooms and break areas. Staff also allowed V to use their personal cellular telephones, gave him contraband (cigarettes and non-inmate issued food) and allowed him to walk unescorted in areas of the institution, including the Vehicle Compound. The timing and extent of Mr. Dunscombe’s knowledge of these things at the time V was at Maplehurst was a major point of contention between the parties. [20] The CSOI investigation revealed that some staff thought that V was allowed to spend the day in the A&D area because he had been classified as a cleaner. It is not disputed that Mr. Dunscombe heard this from staff, although when he first heard it, the number of times he heard it, whether he ought to have found it to be a credible explanation at the time he heard it, and whether he ought to have done anything about it, were all major points of contention between the parties. [21] The Records Office is a secure room near A&D where records staff (who receive special training and are supervised by a Records Manager) handle and store confidential documents, including inmate records. The Warrants Office, which is not so much an office (although it was often referred to as such) as it is a designated area near A&D beside the Records Office, is where corrections staff handle incoming and outgoing paperwork and records relating to inmates. It has a desk, chairs, and a telephone, and it is staffed by a CO. There is a window and “pass-through” for documents between the Records Office and the Warrants Office. On September 4, 2015, records staff in the area expressed concerns when they witnessed V touching paperwork in the Warrants Office. How Mr. Dunscombe dealt with this situation, including whether he actually went to A&D and saw V on that day, was a major point of contention between the parties. [22] It is not disputed that Mr. Dunscombe met briefly with V in the A&D area a few days later. While the precise timing, location, and purpose of this meeting (or these meetings) was a major point of contention between the parties, the more serious disagreement was around whether this meeting was the first obvious opportunity for Mr. Dunscombe to observe that V was being given preferential treatment and if so, whether Mr. Dunscombe responded appropriately. - 8 - [23] Finally, V was released on a Temporary Absence Permit (“TAP”) on September 11, 2015. The fact that the speed with which the TAP was issued constituted preferential treatment was not a major point of contention between the parties (it is unusual for a TAP to be issued so soon after someone begins serving their sentence and for a TAP to be issued to someone serving a relatively brief sentence). However, the timing and extent of Mr. Dunscombe’s knowledge that a TAP was in the works for V and whether he ought to have done anything about it were hotly disputed. [24] Mr. Parisotto returned to Maplehurst on September 10. Information quickly began to surface that V had been given preferential treatment by Ministry staff. Mr. Parisotto requested an investigation on or about September 23, 2015, and CSOI became involved. [25] Mr. Dunscombe was interviewed by CSOI inspectors on August 25, 2016. The next day, he was suspended with pay pending the outcome of the investigation. Many findings were made about Mr. Dunscombe’s conduct, resulting in three main allegations against him. The findings were extensively particularized but can be summarized as follows: Mr. Dunscombe participated in and condoned the preferential treatment of V; Mr. Dunscombe made false statements during the CSOI investigation; Mr. Dunscombe failed to file a COI declaration. As noted above, the third allegation was withdrawn during the hearing. [26] Mr. Dunscombe was called to an allegation meeting with DRD Doug Houghton on May 25, 2017, where he responded to the allegations. Mr. Dunscombe’s employment was terminated approximately two months later by letter dated July 27, 2017. [27] The letter of dismissal is six pages long because it repeats the list of allegations in detail and summarizes Mr. Dunscombe’s response to each one. It also refers to the specific policies and regulations that Mr. Dunscombe is alleged to have breached. The letter notes that the employer accepted Mr. Dunscombe’s explanation for some of the allegations. All of the allegations will be reviewed in this decision, but it is helpful to set them out (edited for clarity and redacted) to provide a complete understanding of the employer’s position that it had just cause to terminate Mr. Dunscombe’s employment. The allegations are: - 9 - 1. You participated in and condoned the preferential treatment being given to inmate V by failing to act and exercise your delegated authority and by willfully participating in actions that were contrary to Ministry regulations. Specifically: a. You failed to follow the recommendation of the inmate V’s Warrant of Committal and follow best practice by arranging for V to be transferred to an alternate facility outside of the Greater Toronto Area. This resulted in V receiving preferential treatment while incarcerated at Maplehurst from Sept. 3, 2015 until Sept. 11, 2015 inclusive. b. You failed to provide direction to Admission and Discharge (A&D) managers to ensure that a Special Processing Alert was entered in OTIS despite having knowledge that inmate V. was a vulnerable individual with past suicidal ideations, contrary to policy. c. You permitted V to be out of secured custody in the Vehicle Compound, contrary to policy on Sept. 3, 2015 between 16:20 and 17:45. d. You failed to direct staff: i. To remove V from the Vehicle Compound; ii. To cease providing contraband (cigarettes and cellular telephone) to inmate V; iii. To have inmate V dressed in the inmate issued clothing; iv. To remove inmate V from A&D and return him to his cell; v. To admit/process inmate V in a holding cell. e. You improperly provided inmate V with a letter of support on Ministry letterhead to be used for inmate V's criminal court matter. This letter was also utilized for inmate V's TAP hearing with the Ontario Parole Board contrary to policy. 2. You made the following false statements during the Correctional Services Oversight and Investigation (CSOI) Unit investigation: a. Stating that you filed a Conflict of Interest Declaration; when you did not; b. Falsely reporting and misrepresenting your conversation with Deputy Regional Director Lucier on September 3, 2015, during which you discussed her recommendation to move inmate V to another institution, which was consistent with the recommendation on the Warrant of Committal; c. Stating that you were unaware of inmate V's movement at Maplehurst during the period from September 3-11, 2015 inclusive despite video evidence and subject/witness employee statements; d. Stating that V was being used as a cleaner in A&D when V was not being used as a cleaner in A&D; e. Stating that you could not recall if V was dressed in the inmate issued orange jumpsuit despite video evidence of you in the presence of V in civilian clothing; f. Stating that you could not recall being in the Vehicle Compound with V despite video evidence of you in the Vehicle Compound with inmate V on Sept. 3, 2015 between 16:20 and 17:48; - 10 - g. Stating that you could not recall a conversation with V on Sept. 8, 2015 at 12:16 to 12:22 despite video evidence showing that you attended A&D and met with V in a holding cell; h. Stating that you could not recall any conversations relating to V's Temporary Absence Program (TAP) application despite statements made by subject/witness employees. 3. You failed to file a Conflict of Interest Declaration indicating that you had a personal relationship with V, contrary to policy and regulations. [28] Equally important are the employer’s stated reasons for concluding that Mr. Dunscombe’s behaviour was serious enough that the employment relationship had been irreparably damaged. This lengthy excerpt from the letter of dismissal sets out the employer’s position: As part of the Senior Management team at the MHCC, you are in a position of trust, afforded autonomy in your role and held to a higher standard of ethical behaviour and accountability. It is incumbent on you to demonstrate leadership and fulfill your duties with integrity and professionalism at all times. When I/M [V] was incarcerated, you were the Deputy Superintendent on call and the senior ranking official responsible for inmates under MHCC care, custody and control. Your actions and inactions, beginning with your first decision to disregard the court recommendation to transfer 1/M [V] to another region and including your repeated inappropriate interactions with I/M [V] and clear failure to direct staff to treat the inmate appropriately; directly led staff to believe that it was appropriate to treat the inmate preferentially, and subsequently violate numerous ministry policies and procedures. While it might be appropriate to take certain measure to protect an inmate who is a CO, what you did and condoned was not safeguarding but providing highly inappropriate preferential treatment and potentially putting the safety and security of the institution at risk. Your actions are not only a clear breach of Ministry and Government policies/legislation but also contrary to the standard of behaviour expected of a member of the Senior Management team. Your actions demonstrate a complete lack of leadership and cannot be tolerated. Your excuses and repeated misrepresentations create a complete lack of trust in the employment relationship. In determining the appropriate response to the substantiated allegations, all of the relevant and available information was reviewed, including that which was provided during your allegation meeting, the serious nature of the substantiated allegations, the impact on the employment relationship, your length of service, your employment record, and the mitigating factors you presented, including your level of remorse. The gravity of the substantiated allegations and the complete lack of trust the employer has in you has irreparably damaged your employment relationship with - 11 - the Ministry of Community Safety and Correctional Services. Given the serious nature of these substantiated allegations and loss of all trust, you will be dismissed for cause from employment with the Ontario Public Service, effective immediately, pursuant to Section 34 and 44 of the Public Service of Ontario Act. Mr. Dunscombe’s Role in the Events at Maplehurst, September 3-11, 2015 Evidence of Witnesses September 3, 2015 [29] Prior to September 3, 2015, DRD Lucier was aware that V had been arrested and charged for driving offences because whenever there are criminal charges against a CO, it is reported to the Regional Office. On September 3, 2015, she received a call from the Deputy Superintendent at the institution where V was employed, telling her that V had been tried and sentenced in Guelph and would be coming to Maplehurst. This was the normal process because Guelph is part of the catchment area for Maplehurst. [30] Sometime later, DRD Lucier spoke to Mr. Dunscombe by phone. Mr. Dunscombe acknowledged that he knew V because they had worked together at Toronto West. He told her that V was going through a tough time, and that he would place V in segregation and get back to her once he had an opportunity to assess the situation. She told Mr. Dunscombe to let her know if there were any problems and that she could get V to a smaller institution, which is typically the practice for high-profile inmates. [31] DRD Lucier testified that the term “high-profile” refers to an inmate who could attract the attention of other inmates in a way that can cause problems. It includes someone who has become known in the media and police officers, Ministry employees, or others in the judicial system. For a Ministry employee such as a Correctional Officer, they would typically be held away from the institution where they work and away from other institutions where they might be recognized, either by other Ministry employees or by inmates. Keeping a Ministry employee such as a CO away from staff they have worked with helps ensure that staff are not put in a position where they might be tempted to provide preferential treatment or otherwise - 12 - compromise themselves. High-profile inmates are also typically housed in segregation where they are less likely to be seen by others and are easier to protect. [32] DRD Lucier was asked if Mr. Dunscombe had told her about the connection between his spouse, Sgt. Core, and V. She replied that he did not. She was asked if Mr. Dunscombe told her that he had written a letter on behalf of V when he was in the midst of a dispute in family court. She replied that Mr. Dunscombe had not. DRD Lucier testified that if Mr. Dunscombe had disclosed these two pieces of information, she would have insisted that V be moved to another institution. [33] DRD Lucier was asked if Mr. Dunscombe had shared the recommendation on the Warrant of Committal that V’s sentence be served “in a facility other than one in the GTA” with her, and she replied that he did not. If he had done so, DRD Lucier testified, it would have prompted her to have V transferred out of Maplehurst as soon as possible, likely the following morning. In her view, regardless of whether Maplehurst is or is not technically in the GTA, she would have interpreted the recommendation to include Maplehurst in the list of institutions where V should not serve his sentence. This is because the objectives behind the special treatment of high profile inmates would not be achieved if V served his sentence there, she explained. [34] DRD Lucier testified that when she was interviewed as part of the CSOI investigation, she recalled only one phone conversation with Mr. Dunscombe on September 3, 2015, and that it had taken place before V arrived at Maplehurst. At the hearing, she was shown a copy of her phone log and the chronology of V’s movements at Maplehurst. With the benefit of that information, she agreed that there were two phone calls with Mr. Dunscombe and that they took place after V arrived at Maplehurst. __________ [35] Sgt. Shari Core was working at Maplehurst on September 3, 2015. She reviewed a transcript of her interview from the CSOI investigation and adopted the statements she gave at that time as her evidence. She testified that she knew V from when they worked together at - 13 - Toronto West. They worked together in A&D and were both members of ICIT. On September 3, she was at work when she received several text messages from other former Toronto West co-workers about V being tried and sentenced. Some of the messages also mentioned that V was very upset. [36] Sgt. Core later became aware that V was coming to Maplehurst. She received a call from the Warrants Office shortly after he arrived. She went to A&D and spoke to V briefly. He seemed less upset than she thought he would be, and he seemed calm by the time she left. [37] Sgt. Core testified that she returned to A&D after her shift ended. V was sitting at a staff picnic table in the Vehicle Compound. CO Brendan Black was also present. Mr. Dunscombe arrived and joined them. V was wearing his street clothes, and he was smoking. She did not know who gave him the cigarettes. The video footage showed that the four of them were there for about an hour. She said that it did not seem that they were together for that long but did not dispute the video evidence. ________ [38] CO Brendan Black was working at Maplehurst on September 3, 2015. He reviewed a transcript of his interview from the CSOI investigation and adopted the statements he gave at that time as his evidence. He knew V as a classmate when they trained to be members of ICIT. They met again during a large-scale ICIT activation and when they did their ICIT recertifications. [39] CO Black was in A&D when V arrived. V was upset, and CO Black and his co-workers were concerned about him. They took him out into the vehicle compound, likely a few times, where he could smoke and calm down. At some point, Sgt. Core and Mr. Dunscombe arrived, and Sgt. Black remembers them talking at the picnic table and smoking. _____ - 14 - [40] V reviewed a transcript of his interview from the CSOI investigation and adopted the statements he gave at that time as his evidence. V testified that when he was sentenced, his lawyer told the Court that V did not want to serve his sentence within the GTA or at Maplehurst. V had instructed his lawyer to ask for this to avoid seeing staff and inmates that he knew. It was for his safety, and so staff would not be in a conflict. [41] V testified that when he arrived at Maplehurst, he was taken to a private area. He had a conversation with Mr. Dunscombe about where he would be housed. He told Mr. Dunscombe that he wanted to go where he did not know anyone and did not want to be a problem for anyone. September 4, 2015 [42] CO Black testified that he worked a shift from 14:00 to 22:00 in the Warrants Office on Friday, September 4. When he arrived for work, V was in the Warrants Office, sitting in a chair, reading. He was wearing civilian clothes. CO Black did not do anything about this because he believed V had been there all day, so he treated V the same way he had the previous day. They made small talk. It got busy as wagons arrived with inmates, and CO Black started to receive paperwork. He checked documents, made some notes, handed the documents to V, and asked him to put them on the counter next to the pass-through window of the Records Office. [43] Shortly after that, Mike Haydar, the A&D Sergeant on duty, called him and asked him if he had given V any paperwork. He replied that he had, and Sgt. Haydar told him that Ms. Allaine [the Records Manager] did not approve of V handling the paperwork. CO Black told him it would not happen again and went back to work. [44] Shortly after that, testified CO Black, Mr. Dunscombe arrived. CO Black did not recall if he came into the Warrants Office or stood in the doorway. Mr. Dunscombe either spoke to V or gestured to him. They left for a few minutes, and then V returned. CO Black asked V what had happened and if everything was okay. V said, “he just asked me not to touch the paperwork,” and CO Black replied that he understood. - 15 - [45] CO Black did not recall if Mr. Dunscombe spoke directly to him at that time, but he agreed that if Mr. Dunscombe had given him any direction about V, he would have recalled it. V remained in the Warrants Office for the balance of CO Black’s shift. [46] In his CSOI interview, CO Black was asked whether he was ever approached by a manager or a deputy between September 3 and 8 and asked why V was in A&D wearing civilian clothes. CO Black replied that he was not. He was also asked whether he believed that the managers and deputies were aware that V was wearing civilian clothes. CO Black replied yes, and said “Mr. Dunscombe for sure.” He was asked why he believed this, to which he replied, “it’s just an assumption because it’s their institution [and] everyone’s talking about it. So I’m assuming that they knew.” _____ [47] Sandra Allain was the Acting Records Manager at the time of V’s admission to Maplehurst. Ms. Allain reviewed a transcript of her interview from the CSOI investigation and adopted the statements she gave at that time as her evidence. Ms. Allain says that on September 4, some of her staff told her that there was an inmate, V, who was a CO, who was in the A&D area and was also in the Vehicle Compound smoking and drinking coffee with some of the COs. Ms. Allain was in the Records Office and could see V sitting in the Warrants Office. V was in civilian clothes. CO Black was there also. She saw V put some paperwork on the counter next to the pass-through window. She was concerned about an inmate handling confidential paperwork, so she called Sgt. Haydar and asked if the inmate could be removed. They had a very brief conversation, and Sgt. Haydar said he understood her concern but that V was a CO from another institution. [48] Ms. Allain was not satisfied with Sgt. Haydar’s response. She understood that V was a CO, she testified, but at that time, he was an inmate. She called Mr. Dunscombe, who was her direct report. They had a very brief conversation that she could not recall exactly, but she told him that V was in the Warrants Office and that she had told Sgt. Haydar, and that she didn’t agree with it. Mr. Dunscombe thanked her, she said. - 16 - [49] Sometime after she spoke to Mr. Dunscombe on the phone, Ms. Allain saw him come down the corridor towards the A&D area. She did not see Mr. Dunscombe speak to V and is unsure if he entered the Warrants Office. September 7, 2015 [50] Sgt. Joanna Gallagher was working at Maplehurst on September 7, 2015. She reviewed a transcript of her interview from the CSOI investigation and adopted the statements she gave at that time as her evidence. She had also worked on September 3, 2015, starting at 14:00 as the A&D Sergeant. She had only been working in A&D since June. Sgt. Haydar was there when she arrived because their shifts overlapped by a few hours. He told her that a CO was being brought to Maplehurst. The CO would be placed in segregation, the floor staff were aware, and everything had been taken care of. [51] During her shift on September 3, she dealt with the processing of a special needs inmate in the A&D area and used the phone in the Warrants Office. A man was sitting in the corner in street clothes, and the officer at the Warrants Desk introduced him to her by his first name. She did not know who he was and assumed he was a visitor or an instructor. She later learned it was V, the CO whom she had been told earlier was being brought to Maplehurst. [52] Sgt. Gallagher did not return to work until September 7, which was the Monday of the long weekend. She became aware that V was using the shower area in A&D and later saw him either going towards or in the staff lunchroom in civilian clothes, accompanied by a CO. She asked the CO why V was not in institutional clothing. The CO replied that it had been like that all weekend, and she did not have to worry about it. Sgt. Gallagher was upset because she was a relatively new manager in A&D, and she had not been told about this. She said that she felt blindsided and was being put in the middle of something she did not agree with. [53] In her CSOI interview, Sgt Gallagher said that she saw V in his street clothes in A&D. She asked a co-worker about this, and he replied that it had been approved and had been - 17 - going on since Friday and not to worry about it. She was asked by the CSOI inspector why, as an A&D manager, she had allowed this to continue. Sgt. Gallagher replied that it was her understanding that it was approved by her superiors, and she does not really question “what [her] superiors have implied.” [54] Sgt. Gallagher was asked what she meant by this answer at the hearing. She said that the preferential treatment had gone on for a long time, although she could not say exactly when it started. She explained that when she came in on Monday, she felt like she was condoning behaviour that had gone on all weekend, and that Maplehurst was a close-knit institution, and someone above her would have heard. [55] Sgt. Gallagher testified that she saw Mr. Dunscombe in a hallway later that day. She was not sure precisely where, but it was not near A&D. She asked him if he knew what was happening with inmate V. Mr. Dunscombe replied that he knew that V was in A&D to be used as a cleaner. Sgt. Gallagher agreed that she did not tell Mr. Dunscombe that she had seen V in civilian clothing, in the staff lunch room, that she had not seen him cleaning, or any other specifics. September 8, 2015 [56] DS Tanya Frankovich was one of two Deputy Superintendents of Operations at the time of V’s admission to Maplehurst (the other was Mr. Dunscombe). There was no transcript of her interview from the CSOI investigation, so excerpts of the audio recording of her interview were played during the hearing. [57] On September 3, 2015, DS Frankovich heard talk that a CO might be coming into custody at Maplehurst later that day. She had no role in planning for his admission and did not see him that day. [58] Her next day at work was September 8, 2015. She and Mr. Dunscombe were reviewing reports from the weekend, and she saw a Temporary Absence Permit (“TAP”). A TAP allows an offender to be out of custody in the community. She looked through the TAP, noticed that - 18 - in the “client profile” section, the offender had been admitted just before the long weekend, which seemed “kind of fast” for a TAP. She also noticed that it was incomplete and not endorsed by anyone. She testified that she noticed the offender’s name but that it did not register that it was the CO who had been admitted. She asked Mr. Dunscombe what it was, and he replied that he did not know and did not want anything to do with it. They put it aside. [59] DS Frankovich testified that Todd Smith, the Acting Deputy Superintendent of Programs, later in the day, asked her about the TAP. She replied that she would not sign it as it was incomplete and would need to go before a parole board. She testified that she had never seen a TAP processed in such a short time except for a funeral. [60] Later that day, DS Frankovich started to overhear staff talking about a CO being down in A&D in his own clothing. This did not strike her as odd because the person could have been going to court. DS Chuck Marchegiano came to her office later and asked her if she had heard anything about an inmate, V, who was a CO, being in A&D and having smokes in the yard. She called down to A&D and spoke to Sgt. Gallagher. DS Frankovich asked her if V was in the area and in his own clothing, and she did not reply. DS Frankovich told Sgt. Gallagher that if he was in the area, to get him changed and back up to his cell. [61] DS Frankovich said she did not recall if Mr. Dunscombe was also in her office when she called down to A&D, but that if he said he was, she would not disagree. _____ [62] Sgt. Gallagher testified that on September 8, she was in her office when she received a call from DS Frankovich. DS Frankovich asked her if V was down there. Sgt. Gallagher’s office is at the far end of A&D, and she had not seen V that day, so she told DS Frankovich that she did not know if V was there. DS Frankovich told her that if V was there, he was to be sent back to his unit and that his coming down was to cease and desist. Sgt. Gallagher spoke to a CO (she does not recall who) and said that if V was in the area, he was to be returned to his unit. - 19 - Mr. Dunscombe’s Evidence [63] Mr. Dunscombe testified that on September 3, 2015, he was walking by a colleague’s office. The colleague motioned to him and told him that DRD Lucier wanted to speak to him. Mr. Dunscombe took the phone, and she asked him if he was the on-call, and he replied that he was. DRD Lucier told him that V, one of his former employees from Toronto West, was coming to Maplehurst to serve a 30-day sentence. Mr. Dunscombe confirmed that he knew V, that they had worked together briefly in A&D there, and that V had been on his ICIT team. He told DRD Lucier that he would take care of it and submit an Inmate Incident Report (“IIR”) when V arrived. [64] Later, Mr. Dunscombe got a call from A&D that V had arrived and was very upset. Mr. Dunscombe told the caller that he knew V and would speak to him. He went to A&D and saw V and a few staff members standing by the door of the Warrants Office in the Video Court area. Mr. Dunscombe testified that at the time, it did not strike him as unusual that V was in this area because an inmate who needed to be kept away from others, such as an inmate in protective custody or is otherwise special or high profile, would be moved there when they arrived. Staff also knew that he was coming to speak to V, so it made sense that V was in a more private area where other inmates would not see them together. V was wearing his street clothes, which did not strike Mr. Dunscombe as unusual because he assumed that V had just arrived and had not yet been processed. [65] Mr. Dunscombe started talking to V, who was very emotional and upset. V told him that he was not expecting to receive custodial time because his lawyer and the Crown had an agreement. Someone handed Mr. Dunscombe V’s Warrant of Committal. He looked at it and noticed that V had been sentenced to 30 days. Mr. Dunscombe testified that at the time, he thought the Warrant recommended that V serve his sentence in Stratford. V told him that when he was in Court, he thought he wanted to get away, but he now realized that this would make things harder on his family and himself. V asked him if it would be possible to “stay here," meaning Maplehurst. Mr. Dunscombe replied that he would have to consult with the Regional Director, and he would see what he could do. This was a very brief conversation that lasted less than a minute, says Mr. Dunscombe. He returned to his office and called Don - 20 - Chillman, Deputy Superintendent at the institution where V worked as a CO. Mr. Dunscombe told Mr. Chillman that V had arrived and he would complete an IIR. [66] Mr. Dunscombe testified that he called DRD Lucier. He told her that V had arrived, that they had spoken, and that V was quite upset. He told her that he was a little concerned about V. He told her that the Warrant recommended that V be housed in Stratford, but that he thought they should “keep him here,” meaning at Maplehurst, let him settle down, and then look at it. DRD Lucier asked him why he thought V needed to settle for a few days. Mr. Dunscombe replied that V was very upset, that he knew him from Toronto West, that he had assisted him in the past, and that V was asking to stay. He told DRD Lucier that he thought it was in V’s best interests to stay there for a few days. DRD Lucier replied that this was fine and to let her know if he needed anything. [67] Mr. Dunscombe testified that he did not call DRD Lucier the following day (September 4) because he was not left with the understanding that he needed to. He understood that V would stay at Maplehurst for a few days, which he took to mean at least until September 8, because V had arrived in the afternoon of September 3, which was the Thursday before the long weekend. [68] Mr. Dunscombe returned to his office, completed the IIR and faxed it to the Regional Office. He returned to A&D to tell V that he would be staying at Maplehurst for at least a few days. Mr. Dunscombe testified that at the time, and when he was interviewed as part of the CSOI investigation, he thought that this conversation took place in roughly the same area as their first conversation, namely in the Video Court area of A&D. Having heard several witnesses describe this incident at the hearing, he now understood that this conversation took place in the Vehicle Compound. He testified that he still did not clearly recall this conversation. He did not recall going out into the Vehicle Compound and returning to A&D. All he could recall was sitting at a picnic table across from V and having a discussion. [69] Later that day, Mr. Dunscombe completed a COI form and left it on his desk. He testified that he handed it to DS Marchegiano the following morning. - 21 - [70] Mr. Dunscombe testified that he understood that V would be housed in segregation after being admitted to Maplehurst. He understood this because he had spoken to the Segregation Manager earlier in the day and asked him to hold a cell, and also because this was in line with the protocol for housing a high-profile inmate. [71] Mr. Dunscombe testified that on Friday, Sept. 4, he was at Maplehurst when he received a call from Ms. Allain, who told him that “the guy from yesterday is handling warrants” (or words to that effect). Mr. Dunscombe called A&D and spoke to Sgt. Haydar. He asked him if he had V in the area. Sgt. Haydar replied that he did and that they were using him as a cleaner. Mr. Dunscombe told Sgt. Haydar that Ms. Allain had called and said that V had touched warrants. He told Sgt. Haydar “that cannot happen,” and Mr. Haydar said, “it won’t happen again” (or words to that effect). Mr. Dunscombe testified that he heard nothing more about V handling warrants after that. [72] Mr. Dunscombe was the on-call Superintendent for the long weekend. He was therefore not in the institution except to complete one required tour of the institution. He testified that he had no special responsibility to follow up on V unless an issue was brought to his attention. On Saturday, Sept. 5, Mr. Dunscombe received a call at home from a Sgt. Wilson asking if he could move V to the infirmary because he needed the segregation cell. This was a common request on weekends because segregation cells were often needed to deal with issues that arose among inmates. Mr. Dunscombe approved the request. [73] As the on-call Superintendent, Mr. Dunscombe planned to do his tour on the holiday Monday. He testified that it was his usual practice when he is the on-call to do the required tour on the last day of the weekend. Mr. Dunscombe went to Maplehurst on Labour Day Monday and did what he normally does when on-call: he reviewed paperwork and toured the institution. He did not see V. [74] On Tuesday, Sept. 8, Mr. Dunscombe returned to Maplehurst. At some point, DS Chillman called him and asked him to speak to V and find out how V wanted to treat his absence from work, to use vacation credits or unpaid leave. Mr. Dunscombe testified that he went to see V in A&D. Their conversation lasted 3 or 4 minutes. He testified that he does not - 22 - recall what V was wearing, but it was not the orange clothing issued to inmates. This did not strike him at the time, testified Mr. Dunscombe, but as he was returning to his office, he realized that V had not been wearing inmate clothing. He passed by DS Frankovich’s office and told her that he had just come from A&D. He said, “they’ve got V down there in street clothes” (or words to that effect). Mr. Dunscombe told her that he was going to his office to call down to A&D, but DS Frankovich said, “No, I’ll deal with it,” and picked up the phone. [75] Mr. Dunscombe testified that he stayed in DS Frankovich’s office during the call. He understood she was talking to Sgt. Haydar. She asked him if V was there, and there was a pause. She said, “I don’t care why he’s there, get him out now, and he is not to return” (or words to that effect). [76] Later that day, testified Mr. Dunscombe, DS Marchegiano called the Senior Management team into the Superintendent’s office. DS Marchegiano said that he had heard that something was going on in A&D. Mr. Dunscombe and Ms. Frankovich told him about calling down to A&D after seeing V in civilian clothing there earlier in the day. One of the other managers said he would follow up with an email to all managers to make sure V was not brought back down to A&D. [77] Mr. Dunscombe testified that he was at work on Wednesday, Sept. 9, when he received an email from DS Chillman. A letter to V was attached to the email, and DS Chillman asked Mr. Dunscombe to give the letter to V. The letter contained personal information, so V could not have it in his possession while he was in custody in the institution, Mr. Dunscombe testified. He asked one of his managers to take it to the A&D property area to be given to V when he was released. [78] Mr. Dunscombe testified that he was not aware of the extent of V’s preferential treatment by staff until he received the allegation letter because the letter contained a lot of information. He testified that having heard the evidence of the employer’s witnesses at the hearing, he had learned that his actions had a great impact on others. Even though his actions on September 3 came from a good place, they created a snowball effect that contributed to what happened. As a leader, he needed to be more aware of his actions and set a better - 23 - example. He made a lot of assumptions about things and should have been much more involved. There were some cues that he should have picked up on and looked into, he testified. [79] For example, when Sgt. Gallagher approached him in his office, she asked him if he knew what was going on with V in A&D. Mr. Dunscombe had replied that he did and told her that V was being used as a cleaner. Sgt. Gallagher replied, “okay,” and did not say anything to the contrary. Mr. Dunscombe testified that he now realizes that for her to come into his office and ask a question like that probably meant that she wanted to say more. He should have picked up on that, sat her down, and asked her why she had come to see him. [80] Mr. Dunscombe was cross-examined at the hearing. He confirmed that he worked with V when they were both at Toronto West. Sgt. Core, Mr. Dunscombe’s spouse, had also worked there with V in A&D at the same time. Mr. Dunscombe agreed that he knew about some of the issues in V’s personal life at that time. V had asked him for a letter of support in connection with a family law matter, which Mr. Dunscombe provided. [81] Mr. Dunscombe testified that he had heard talk in the past about V having suicidal tendencies, and these same concerns surfaced when V was about to be admitted to Maplehurst. Although Mr. Dunscombe had had no communication with V since June 2014, he agreed that he felt that he knew enough about V to complete a COI form when V arrived. [82] Mr. Dunscombe confirmed that he was part of the Senior Management team at Maplehurst. He agreed that the Senior Management team helps set the tone for the institution, and members of the Senior Management team should be role models for staff. [83] Mr. Dunscombe agreed that V was a high-profile inmate, that other than being held in segregation, he should be treated the same as any other inmate and should not be given preferential treatment. He agreed that a high-profile inmate, such as a Police Officer or a Correctional Officer, should be housed in segregation for their own safety. A high-profile inmate could be a target of inmate violence from someone who recognized them while they were serving their sentence. A high-profile inmate also might cross paths later, in their own - 24 - workplace, with an inmate who had seen them when they were serving their sentence. This could lead to attempts to target or compromise them in their workplace, either at the institution where they were serving their sentence or when they returned to their home institution. Mr. Dunscombe agreed that these are all reasons to consider transferring a high- profile inmate such as a CO to an institution where they are less likely to be recognized. [84] Mr. Dunscombe agreed that his and Sgt. Core’s work history with V and the fact that other staff at Maplehurst knew V were also reasons to consider transferring V after he arrived. He did not agree that there is a presumption that a recommendation on a Warrant of Committal would be followed but did agree that it should be considered. Mr. Dunscombe confirmed that he had the authority to transfer V in consultation with the receiving institution. He could have decided to do so without asking DRD Lucier. [85] Mr. Dunscombe agreed that V’s history of suicidal thoughts and his concerns about V’s mental state and vulnerability were some of the reasons he went to see V when he first arrived at Maplehurst. Mr. Dunscombe agreed that these were also some of the reasons he thought V should be kept at Maplehurst, which was close to where V’s family lived. He agreed that the RN who assessed V when he was admitted described V as relaxed and did not see the need for a suicide watch. [86] Mr. Dunscombe confirmed that in his first conversation with V, V told him that he wanted to do his time quietly where he didn’t know anyone. Mr. Dunscombe agreed that V did not ask to be kept at Maplehurst. All he asked was to be kept safe. He (Mr. Dunscombe) had told V that he could be kept safe at Maplehurst, and V had agreed. Mr. Dunscombe agreed that he was the one who had brought up the possibility of V staying at Maplehurst. [87] Mr. Dunscombe confirmed that he had two phone conversations with DRD Lucier. He denied that he told her or that there was any understanding that he would assess the situation and get back to her in either call. He insisted that he told DRD Lucier that the Warrant said that V should not be housed in the GTA. He confirmed that he did not tell DRD Lucier that he had written a letter of support for V for a family law matter, explaining that he had totally - 25 - forgotten about it. He confirmed that he did not tell DRD Lucier that Sgt. Core had also worked with V at Toronto West. [88] Mr. Dunscombe agreed that on the day V arrived at Maplehurst, some staff would have seen him talking to V in the Vehicle Compound. He agreed that it would not have gone unnoticed that a Deputy Superintendent spoke to an inmate in street clothes for 50 minutes. He agreed that this would have left an impression on staff. He insisted that he could not recall whether V had been smoking when he, Sgt. Core and CO Black were with him in the Vehicle Compound. Mr. Dunscombe agreed that even if V had not been smoking, it was a mistake and a very bad example for V to be in the Vehicle Compound. He did not ask anyone why V was in civilian clothes, and he did not know whether V had been admitted yet or not. Mr. Dunscombe agreed that he should have had V removed from the Vehicle Compound right away. [89] Mr. Dunscombe agreed that it was reasonable to assume that because V was in civilian clothes, he had not been strip-searched, although he would have been frisked. He agreed that if an inmate has not been strip-searched, they present a security risk. Mr. Dunscombe testified that he did not see V as a security risk because he was a CO. Mr. Dunscombe did not think about why, several hours after V had arrived, V was still in his civilian clothes, in the Vehicle Compound, and still may not have been processed. He would have been concerned about these things for any other inmate, but he did not see V that way because he was concerned about him as a person. [90] Mr. Dunscombe disagreed that he simply thanked Ms. Allain when she called him on September 4 to tell him about V handling confidential documents. He may have said something more, but he agreed that he did not express shock or surprise. Mr. Dunscombe insisted that he did not go to the Warrants Office that day and that he never spoke to V. He could not explain CO Black’s evidence except to say that to be best of his knowledge, he did not go to the Warrants Office, and he did not speak to V. He could not explain Ms. Allain’s evidence except to say that she saw him in the hallway and not in the Warrants Office and that she may have been confused between September 3 and September 4. - 26 - [91] Mr. Dunscombe insisted that he dealt with Ms. Allain’s concern appropriately by phoning Sgt. Haydar. He agreed that he did not direct anyone to remove V from the Warrants Office and take him to segregation. He did not ask for any reports or make any further inquiries about why V was in the Warrants Office handling confidential paperwork. He agreed that there was no reason for V to be in civilian clothes that day, but he was not aware of it because he did not see V. [92] Mr. Dunscombe insisted that he was not fully aware of the inmate classification and work board processes and that he did not know whether it would have been necessary for V to go through those processes to work as a cleaner in A&D. He confirmed that he was told on September 4 that V was being used as a cleaner in A&D, at the same time he was told that V was handling paperwork in the Warrants Office. [93] Mr. Dunscombe disagreed that assigning V to be a cleaner in A&D defeated the purpose of housing him in segregation. He agreed that an inmate cleaner would not be allowed in the Warrants Office but added that although V had been in an area where he should not have been, this did not mean he was not being used as a cleaner. He confirmed that he was told that V was being used as a cleaner in A&D and that this was his understanding. According to Mr. Dunscombe, other high-profile inmates have been used as cleaners in A&D, and on those occasions, staff were very careful to ensure that this was only done when no other inmates were around. Mr. Dunscombe agreed that he did not seek confirmation from staff that V was not being exposed to other inmates, either when he was being moved from segregation to A&D or while he was in A&D, because he trusted staff. [94] Mr. Dunscombe was asked if he thought it was appropriate for V to be used as a cleaner in A&D, and he replied that if staff thought it was okay and could manage it, this was better for V than a segregation cell. When the matter of V handling paperwork was brought to his attention, he dealt with it, Mr. Dunscombe asserted. He had no concerns at that time about V being used as a cleaner in A&D, and he agreed that he was content for V to stay in A&D after that. He felt he had handled the matter and that it was resolved. Mr. Dunscombe insisted that he had no reason to become concerned until September 8, when he saw that V was in civilian clothes. - 27 - [95] Mr. Dunscombe agreed that almost all COs interviewed as part of the CSOI investigation were forthcoming about V’s preferential treatment. He agreed that almost all COs admitted that this was inappropriate but that they saw V as a co-worker and thought he had been brought to A&D to protect him. Mr. Dunscombe agreed that V’s admission was a memorable event. [96] Mr. Dunscombe agreed that many COs expressed the view that Senior Management knew about and condoned V’s preferential treatment but added, “that is their view.” He agreed that he was part of the Senior Management team, and as far as he is aware, no other senior manager was with V in the Vehicle Compound. [97] Mr. Dunscombe agreed that he knew that V would be in custody over the long weekend and that he had promised to keep V safe. He knew that V had been transferred to the infirmary on Saturday because he had been called to approve it. He toured the institution over the weekend, but he did not tour the infirmary, although he agreed that he was supposed to tour the entire institution, adding that he may have cut his tour short because he was not feeling well. Mr. Dunscombe was asked if it would not have been a priority for him to check on V because he had assured him he would be kept safe, and Mr. Dunscombe replied that he trusts staff. Mr. Dunscombe was asked if he did not think he should check on a high-profile inmate, especially one he thought was vulnerable, and he replied he would not unless he was told there was an incident. He agreed that something highly irregular had happened on September 4, when V had handled confidential paperwork. When he did his tour, it did not occur that he needed to do more because he thought the issue that had arisen on September 4 had been dealt with, he testified. [98] Mr. Dunscombe agreed that on September 8, when DS Chillman called him and asked him to find out how V wanted his absence from work to be dealt with, he (Mr. Dunscombe) knew that he would find V in A&D. Mr. Dunscombe insisted that he was the one who told DS Frankovich that V was in A&D in his civilian clothes being used as a cleaner and that he offered to call down, but she said she would. He insisted that he had stayed for the phone call. - 28 - Mr. Dunscombe’s Interview during the CSOI Investigation Evidence of Witnesses Background and Context to Mr. Dunscombe’s Interview [99] Nadia Franzon, an Inspector with CSOI, joined MCSCS in 2003, working primarily in probation and parole. She joined the CSOI branch of the Ministry in 2015. In late January 2016, she was assigned to the investigation into V’s preferential treatment. The file was initially assigned to her colleague, Mike Mizzi, in September 2015. Mr. Mizzi had started the investigation by gathering documents, requesting copies of security video footage from Maplehurst, and taking other preliminary steps. When she was assigned to the file, Ms. Franzon spoke to Mr. Mizzi about the information he had gathered. The documents and other materials filled several file boxes. [100] The investigation was not focussed on anyone in particular, testified Ms. Franzon. The information she was given was that there was a concern about the preferential treatment of an inmate at Maplehurst for the period September 3-11, 2015. She approached the investigation with an open mind. [101] Ms. Franzon began by reviewing the documents and the video footage (which had been burned onto many DVDs) to trace V’s movements. There was video footage for every day from September 3-11 except for September 4 in the file boxes. She requested the footage for September 4 but was told that the retention period had expired. Ms. Franzon created a timeline and pieced together V’s movements with the times he came into contact with correctional staff. A co-worker who had worked at Maplehurst helped her identify staff. [102] Based on her review of the video footage, Ms. Franzon testified, she formed a general impression that V had received preferential treatment. V did not go through the typical admissions process when he arrived. During his stay, V wore civilian clothing during the day, only changing into inmate clothing when he was taken to where he was housed at night. - 29 - She saw him walking by himself (unescorted) in A&D, spending time in the staff lounge, and using the staff washroom. She saw him come and go from the Vehicle Compound. She once saw a CO bring takeout food into the staff lounge when V was present. [103] Ms. Franzon testified about what the video footage depicted concerning Mr. Dunscombe and V. On September 3, V arrived at Maplehurst at 15:36. He and Mr. Dunscombe are seen in the Video Court area near A&D from 15:50 to 16:05. They are together for about 15 minutes. Mr. Dunscombe leaves the area, and a CO accompanies V to the Staff Lounge. At 16:20, V and a CO leave A&D and enter the Vehicle Compound. Mr. Dunscombe enters the Vehicle Compound at 16:53. Mr. Dunscombe leaves the Vehicle Compound at 17:48. During this time, several other COs are seen in the A&D area and the Vehicle Compound. Sgt. Core is also in the Vehicle Compound for an extended period. [104] Ms. Franzon testified that she next saw Mr. Dunscombe and V together in the video footage on September 8. V spent the morning in A&D in the Staff Lounge area. Beginning at 11:50, Mr. Dunscombe comes and goes from the A&D area a few times. At 12:15, he returns to A&D with a white paper in his pocket. A CO escorts V to Mr. Dunscombe, and they enter a cell in the Video Court area together, where they remain until 12:22. Mr. Dunscombe leaves the area, and V returns unescorted to the Staff Lounge area. Mr. Dunscombe returns at 12:52 and enters the Staff Lounge area, leaving 2 minutes later. [105] Ms. Franzon described how she followed her usual investigative process to interview staff, beginning with senior management. Each interviewee is sent an official written notification inviting them to attend an interview at a specific place and time. A copy of the Investigation Protocol under the Ministry of Correctional Services Act is attached to the letter. [106] The letter describes the subject of the investigation, identifies the interviewee as a witness or a subject, and informs the interviewee that they can have an observer or representative present. She testified that a “subject” of an investigation faces the possibility that findings could be made that the employee has breached their obligations, whereas a “witness” is simply that, at least going into their interview. - 30 - [107] Every interviewee is given a copy of a standard CSOI Interview Statement form to sign before starting their interview. The interviewee is also expected to answer a series of questions, the essence of which is that they understand the Investigation Protocol and the consequences of cooperating, or not cooperating, with the investigation. One of the questions is: “Do you fully understand your legal duty and obligation during this interview to provide a complete, full and truthful statement regarding any information you may possess surrounding the matters we are about to discuss today.” At the end of their interview, each interviewee is expected to sign a statement that reads in part, “I fully understand that any intentional omissions or false and/or misleading statements to the inspector may subject me to discipline up to and including dismissal.” [108] Ms. Franzon testified that she identified Mr. Dunscombe as a subject of the investigation (as opposed to a witness) based on what she had seen in the video footage. Specifically, Mr. Dunscombe was seen interacting with V on September 3 and 8, and the circumstances of these interactions were unusual, as described above. Mr. Dunscombe’s CSOI interview took place on August 25, 2016. Ms. Franzon and Mr. Mizzi interviewed him. Mr. Dunscombe attended with a representative. He signed all of the forms described above and answered all questions about his understanding of the Investigation Protocol in the affirmative. [109] Ms. Franzon testified that she followed her usual pattern of questions when she interviewed Mr. Dunscombe. She started with open, broad questions and followed up with narrower questions as appropriate. Sometimes she would offer more specific information to prompt his recollection. Ms. Franzon reviewed a transcript of Mr. Dunscombe’s interview at the hearing, and the following is a summary of that interview based on her evidence and the transcript. There was no dispute that the transcript was an accurate record of Mr. Dunscombe’s interview. - 31 - Mr. Dunscombe’s Evidence [110] After some preliminary discussions with the investigators, Mr. Dunscombe told them that he was informed that V was coming into custody, so he made arrangements for a segregation cell and notified the A&D manager that upon admission, V was to be taken there and housed as a “no contact” with any other inmate. Mr. Dunscombe was notified that V had arrived and became aware that V was struggling with the circumstances of his custody. He said he had a rapport with V, personal knowledge of troubles in V’s life, and awareness that V was a vulnerable person and had been treated for depression and suicidal ideation, so he went to A&D to speak to V. [111] Mr. Dunscombe told the inspectors that he told V that there was a recommendation that he be housed at Stratford, and V replied that this would crush him to be outside of the area where he felt comfortable. Mr. Dunscombe replied that that was the recommendation, and V said, “I’d rather stay here.” He told V that they would put him in segregation for the night and notify somebody immediately if he needed anything. [112] Mr. Dunscombe told the inspectors that he contacted DRD Lucier and discussed the original recommendation (on the Warrant) and the potential conflict of interest between himself and V and between V and other former employees of Toronto West that were working at Maplehurst. He told DRD Lucier that it was his opinion that balancing that with V’s current mental state, they should try keeping him at Maplehurst initially. DRD Lucier replied that that was fine for now, he testified, and they agreed that if it became an issue, they would revisit it later. [113] Mr. Dunscombe told the inspectors that he did not believe he had any other contact with V after that. He said that he knew there was some discussion about a TAP or a parole process that he had no part in, but he had told them all he really recalled about V’s stay. [114] The inspectors asked Mr. Dunscombe to think about the day V was admitted and where he had spoken to him. Mr. Dunscombe told them that he believed it was in the Video Court area of A&D. He said that V was in his street clothes and he did not know whether V had - 32 - been processed yet, and his focus was on V’s mental state. Mr. Dunscombe was asked whether he spoke to V any other time that day, and he replied that he did not believe so. [115] The inspectors noted that V had been there from September 3 to 11 and asked Mr. Dunscombe if he had had any other conversations with V. He replied that it was his understanding that V was being used as a cleaner in A&D, so he was not sure if he had seen him at any other time. He was asked how it had come to his attention that V was an A&D cleaner, and Mr. Dunscombe replied that he had just heard that he was. He was asked if he went to speak to V in A&D, and he replied he may have had some incidental contact with V while he was passing through A&D, but that the only time he remembered having a “true conversation” with V was when he was admitted. Mr. Dunscombe was asked if he recalled any other interactions with V. He replied he did not and he only recalled the one conversation in the Video Court area of A&D. [116] The inspectors asked if he recalled speaking to V in the Vehicle Compound, and he replied that he did not. He was asked specifically about walking into the Vehicle Compound to speak with V, and Mr. Dunscombe replied that he did not believe he had done so. He was asked whether an inmate would normally be allowed to go out in the Vehicle Compound, and Mr. Dunscombe replied, “of course not.” [117] The inspectors asked Mr. Dunscombe if he was aware of V’s movement in the institution between September 3 and 11, and Mr. Dunscombe replied, “not at all.” [118] Mr. Dunscombe was asked if he had a conversation with V on September 8. Before Mr. Dunscombe answered, the inspector added that Mr. Dunscombe had been given a letter by DS Chillman to pass on to V on September 9. Mr. Dunscombe confirmed that he had delivered a letter to V from DS Chillman. He was asked where he delivered the letter to V, and he replied that he did not recall. Mr. Dunscombe added that he did not believe he ever saw V in his cell, so that it was likely in A&D, but he did not specifically recall delivering the letter until the inspectors mentioned DS Chillman. Mr. Dunscombe told them he recalled a letter about V’s suspension, and one inspector added that on September 9, DS Chillman had sent him an email, to which Mr. Dunscombe replied, “okay.” He was asked if he went down - 33 - to A&D to have a discussion with V on the day prior, September 8. He answered that he did not recall doing that. [119] The inspectors asked Mr. Dunscombe if he remembered at any point in that period of time what V might have been wearing. He replied that he only remembered the first conversation on September 3 and that V was in his street clothes at that time. [120] The inspectors noted that Mr. Dunscombe had mentioned a TAP at the start of his interview, and they asked him if he knew anything more about that. He replied that there was not much to talk about but that DS Marchegiano might have mentioned to him that a TAP was being processed for V and that he would consult Region about whether it was appropriate. Mr. Dunscombe was asked directly if he had any discussions with anybody about V’s TAP, and he replied no. He was asked if he had ever had a conversation with DS Smith about a TAP, and Mr. Dunscombe replied that he thought the TAP was originally presented to DS Smith but that he did not recall any conversation with DS Smith specifically about it. [121] After confirming that Mr. Dunscombe had given directions for V to be housed in segregation and that V was not to have contact with any other inmates, the inspectors asked Mr. Dunscombe if he knew how an inmate would get a job as a cleaner in A&D. He replied that he did not know. He was asked if he would not want to look into that if he was seeing V as a cleaner. He replied that he did not know how that came to be and that he was not entirely familiar with the processes in A&D. The inspectors then asked Mr. Dunscombe a series of questions which suggested it was unusual that V had gotten a job as a cleaner in A&D so quickly, to which Mr. Dunscombe replied that he did not know. He was then asked if it was somewhat of his responsibility if he had seen V as a cleaner in A&D to say, “wait a minute, what (is he) doing here?” Mr. Dunscombe replied that he didn’t question it at the time but didn’t really look into it either, adding that he did not know what process was used to get him down there as a cleaner. Mr. Dunscombe was asked a series of questions that essentially challenged why a high profile inmate, who was supposed to have heightened security measures, was working as a cleaner in A&D. Mr. Dunscombe’s responded by repeating that - 34 - he was unaware of how V had been made a cleaner and that he did not know what measures were in place to move him back and forth from segregation. [122] Later in the interview, Mr. Dunscombe confirmed that his initial contact with V was out of compassion and concern. He said he understood that the inspectors were suggesting that in hindsight, he should have looked into whether it was appropriate for V to be in A&D, but added that he did not know at what point he became aware that V was there. Mr. Dunscombe told the inspectors that aside from his initial direction to house V in segregation and his approval of the request to move him to the infirmary, he gave no other direction requesting any sort of preferential treatment for V. [123] After some questions about whether Mr. Dunscombe ever wrote a reference letter for V, the inspectors reminded Mr. Dunscombe that they “have video,” and they asked him again whether he recalled any time other than the initial meeting in the video court area that he interacted with V between September 3 and 11. Mr. Dunscombe said that he was not being evasive but had told them his memory of the situation. He added that if they showed him video of a different interaction with V he would not dispute it, but he did not recall any other discussions. The inspectors told Mr. Dunscombe that they had video of him exiting A&D and walking into the Vehicle Compound where V is already present in his street clothes. They told him that he was there from 16:53 to 17:43 when he returned inside and asked if he recalled that. Mr. Dunscombe said that he did not. [124] The inspectors asked Mr. Dunscombe if he knew whether V smoked, and he replied that he did not. They asked him, “if we have you on video outside the building with [V], would that be an issue?” Mr. Dunscombe replied that if they had him on video having a discussion with V in the Vehicle Compound he would not dispute it, but the only recollection he had was of a conversation in the Video Court area. The inspectors prompted him that it was a lengthy conversation of about an hour and that V was in his street clothes, but Mr. Dunscombe said he did not remember it. [125] The inspectors mentioned September 8 again and told Mr. Dunscombe that there was video of him going to A&D on that day at 12:03. They told him he had a folded paper in his - 35 - back pocket and went into a holding cell, followed a few minutes later by V. They told Mr. Dunscombe that he and V were there for about 5 minutes and that V was not in an orange jumpsuit. Mr. Dunscombe said he did not recall and asked if this was when he delivered the letter to V. The inspectors said they didn’t know what he was delivering because the letter from DS Chillman was dated September 9, so he could not have been delivering that letter to V on September 8. They told Mr. Dunscombe that they mentioned the letter in his back pocket because it might spark his memory. He replied that he always carries a duty roster in his back pocket, and one inspector said it might have been that. [126] The inspectors told Mr. Dunscombe that the video showed him and V going different ways after they leave the holding cell, with V is in his street clothes going towards the staff lounge area of A&D. Mr. Dunscombe said that he did not recall it. They asked him if it did not strike him as odd that he saw an inmate in his street clothes. Mr. Dunscombe replied that he understood what they were saying. They told Mr. Dunscombe that it was difficult to believe that he would not recall V not wearing an orange jumpsuit because that would be hard to miss. He replied that he honestly did not remember having that conversation with V and did not remember seeing him in his street clothes. [127] The inspectors returned to the timing of Mr. Dunscombe’s first meeting with V in the video court and the second longer meeting in the Vehicle Compound. Mr. Dunscombe confirmed that he did not remember meeting with V in the Vehicle Compound and that he did not remember meeting with V, who was in his civilian clothes, in the holding cell. [128] The inspectors asked Mr. Dunscombe if there was any additional information he would like to provide regarding the circumstances surrounding the incident or any additional information that he felt was important and would like to put on the record. Mr. Dunscombe replied in the negative, and the interview ended. - 36 - Evidence of Witnesses Outcome of the Investigation by CSOI [129] At the hearing, Ms. Franzon testified that she concluded at the end of the investigation that Mr. Dunscombe had not been truthful in many of his answers to the interview questions. She explained that she reached this conclusion for several reasons, including that Mr. Dunscombe insisted that he had filed a COI declaration, but there was nothing on file and no evidence that he had done so. Also, Mr. Dunscombe’s evidence about his discussion with DRD Lucier conflicted with the latter’s recollection of their discussion. [130] At the hearing, Ms. Franzon testified that based on information that had come to light following the release of her report, Mr. Dunscombe’s answers on these points during his interview were, in fact, truthful. [131] However, Ms. Franzon testified that there were other reasons why she had concluded that Mr. Dunscombe had not been truthful. During his interview, Mr. Dunscombe recalled having only one brief meeting with V, in A&D, shortly after V arrived, but this was clearly not the case. Notably, he said he had no recollection of being with V in the Vehicle Compound on September 3 for nearly an hour or of meeting with V on September 8 in a cell near A&D. In stark contrast, all but one of the front-line corrections staff who appeared with V in the video footage and who were interviewed were able to recall clearly and describe their interactions with V, particularly CO Black and Sgt. Core, who had a firm recollection of their time in the Vehicle Compound. [132] Mr. Dunscombe had told her that he was unaware of Vs movements while he was at Maplehurst, but it was clear that that wasn’t true. It was a very unusual occurrence to have an active CO as an inmate, spending his days in A&D and the Staff Lounge, wearing civilian clothes, said most front-line staff, and their interactions with V stood out in their memories. Also, most of these interviewees recognized that they had provided V with preferential treatment. They agreed that this was improper and contrary to policy and procedure, although some said it was “the right thing to do” because V was a fellow CO. All of this contrasted - 37 - starkly with the answers that Mr. Dunscombe gave during his CSOI interview. Ms. Franzon concluded that Mr. Dunscombe was deceitful with the investigation based on the totality of his answers. [133] Ms. Franzon was cross-examined extensively and at great length at the hearing. Among other things, she was questioned about her experience conducting CSOI investigations, her interview technique, the order in which she conducted the interviews, whether she asked Mr. Dunscombe misleading and confusing questions, why she had not re-interviewed Mr. Dunscombe, whether she had already made up her mind about Mr. Dunscombe before she interviewed him, and why she determined that he had been deceitful rather than simply forgetful. It was also put to her that because the COI form that Mr. Dunscombe insisted he had filed had been found, and Ms. Lucier’s phone records showed that Mr. Dunscombe had called her back, the findings in her report were undermined. Ms. Franzon strongly resisted this proposition, stood by her other findings, and maintained her overall conclusion that Mr. Dunscombe was deceitful with the investigation based on the totality of his answers. Allegation Meeting and Decision to Dismiss Mr. Dunscombe for Cause Evidence of DRD Houghton [134] DRD Doug Houghton was assigned to conduct the allegation meetings following the investigation by CSOI into the preferential treatment of V at Maplehurst. He prepared allegation letters based on the findings in the CSOI report. He also reviewed the video recordings. His office arranged an allegation meeting with each employee based on their availability. A letter setting out the allegations was sent to each employee ahead of their meeting. Another management representative was present during the meetings, and employees were informed that they could bring a representative or support person of their own. [135] DRD Houghton testified that he read the allegations one by one at every allegation meeting. He took typed notes of the employee’s response and read them back to the employee to ensure that he had accurately captured what they had said. These were later - 38 - inserted into a copy of the allegation letter so that the employee’s response followed each allegation. The other management representative took handwritten notes. [136] Mr. Dunscombe’s allegation meeting took place on May 25, 2017. He attended with a support person. DRD Houghton read each of the allegations, and Mr. Dunscombe responded. It is DRD Houghton’s practice to read each question verbatim and note the employee’s response. He repeats the question if he is asked to provide additional information or clarification. DRD Houghton testified that he found many of Mr. Dunscombe’s answers unsatisfactory. For example, in response to the allegation that he failed to follow the recommendation in the Warrant of Committal, Mr. Dunscombe responded that it was a recommendation, not an order, and that what happened could not have been foreseen. DRD Houghton said that while it is technically correct to say that the WOC contained a recommendation and not an order, best practice would have been to follow the recommendation. [137] DRD Houghton testified that it was foreseeable that staff at Maplehurst would have worked with V and that there was a chance he would get preferential treatment. There was also a chance inmates would recognize him, and it would have been much safer to transfer him to another institution. [138] DRD Houghton testified that he did not accept Mr. Dunscombe’s response to the allegation that he met with V in the Vehicle Compound. Mr. Dunscombe admitted in the allegation meeting that he had met with V but tried to explain that he felt the Vehicle Compound was secure. DRD Houghton testified that the Vehicle Compound is not a place to have a lengthy discussion with an inmate or take an inmate to have a smoke and that Mr. Dunscombe was admitting to his behaviour but trying to minimize its seriousness. In DRD Houghton’s opinion, the news that a senior manager had been in the Vehicle Compound for nearly an hour with an inmate who was in his civilian clothes and also given contraband would “spread like wildfire” among staff, who would deem it to be acceptable behaviour, when it was clearly not. - 39 - [139] DRD Houghton testified that he found Mr. Dunscombe’s responses to the allegations that he failed to direct staff to cease providing contraband to V, have V dressed in inmate clothing, and remove V from A&D equally unsatisfactory. Other staff had agreed that this kind of preferential treatment had taken place, but in DRD Houghton’s view, Mr. Dunscombe’s answers were evasive, and his explanations were attempts to minimize the severity of the allegations. [140] As to the allegations that Mr. Dunscombe had made false statements during the investigation by CSOI, DRD Houghton testified that he did not accept many of Mr. Dunscombe’s responses. His assertions in his interview that he could not recall the lengthy meeting with V in the Vehicle Compound or seeing V in civilian clothing were not plausible because these were very unusual events that almost every other staff recalled clearly. Mr. Dunscombe’s explanation that he genuinely believed that V was being used as a cleaner in A&D was not credible because of the speed with which it had supposedly happened and because a cleaner would not be allowed to sit in the Warrant Office in civilian clothes. [141] DRD Houghton testified that overall, Mr. Dunscombe admitted to some inappropriate behaviour, but he often tried to “explain it away” to lessen its severity. He felt that Mr. Dunscombe’s actions seriously tarnished the reputation of the Ministry. He also noted that many front-line COs and managers admitted their behaviour and later realized it was inappropriate. Many front-line staff told him that they behaved as they did and gave V preferential treatment because they had witnessed Mr. Dunscombe in the Vehicle Compound and thought that Senior Management approved of the preferential treatment. In their allegation meetings, they realized they had done something wrong and were remorseful for what had happened, but did not believe at the time that they were doing anything wrong because they were following cues from Senior Management. [142] DRD Houghton testified that many front-line staff thought they were helping V and that keeping him in A&D and allowing him to wear civilian clothes preserved his anonymity and dignity. In actual fact, explained DRD Houghton, they were exposing V to more potential problems because if he had been kept in a segregation cell, there was very little chance of another inmate seeing him. In A&D, wearing his own clothing, there was much more - 40 - potential for inmates to see him and recognize him in the future. More staff were likely to see him in A&D, which increased the possibility that staff would label him as an offender if they later saw him at training or another institution. Housing him in segregation would have minimized both of these concerns. [143] DRD Houghton also testified that if the original recommendation from the Court had been followed, none of the events at Maplehurst involving the preferential treatment of V would have happened, and correctional staff would not have breached policy and faced discipline. It was all very avoidable, and it left a very big stain on the Ministry’s reputation. [144] DRD Houghton was cross-examined extensively at the hearing. He agreed that it would be difficult for correctional facilities to function if every Ministry policy and procedure were followed to the letter. He agreed that COs do not receive specific training about what to do when another CO is incarcerated and that there is no specific policy on this. He agreed that being kept in segregation all day would not be enjoyable and that keeping V in A&D was, to some extent, humane. He also agreed that there could be some justification to treating an inmate humanely based on the Ministry’s mission statement. DRD Houghton remained firm in his view that keeping V in A&D in his civilian clothes was “a horrible decision that had the potential for danger.” [145] DRD Houghton did not concede that there were valid reasons for not transferring V out of Maplehurst when he arrived. If there is a recommendation on the Warrant, the best practice is to follow it. If an inmate expresses a preference about where they want to serve their sentence when they arrive, this can be considered, but inmates are not usually consulted about this. Proximity to family and humanitarian concerns can be considered but would be trumped by a Judge’s recommendation. [146] DRD Houghton insisted that if he were in Mr. Dunscombe’s position, he would have transferred V to another institution. DRD Houghton was unshaken in his view that it was foreseeable that preferential treatment would happen in allowing V to remain at Maplehurst. He conceded that it was a judgement call, and in this case, Mr. Dunscombe exercised bad judgement. - 41 - [147] DRD Houghton was challenged extensively about his practice in the allegation meetings to read each question verbatim but not provide additional information or clarification if asked. He agreed that Mr. Dunscombe had asked for clarification of some of the questions in his allegation meeting. DRD Houghton testified that his role was to read the allegations, which were based on the findings in the CSOI report, and get Mr. Dunscombe’s answer. For example, the report concluded that Mr. Dunscombe saw V twice in his civilian clothes in A&D. Even if the allegation was not specific, Mr. Dunscombe had to account for both times, and he was best placed to know what had happened. DRD Houghton testified that he would have told Mr. Dunscombe the same thing he told other employees during their allegation meetings: the meeting is their opportunity to provide information, including mitigating factors, for the employer to take into account. Evidence of Supt. Mark Parisotto [148] Supt. Parisotto was on annual leave from Sept. 4 to Sept. 9 (inclusive) during the time V was at Maplehurst (September 3-11, 2015). Mr. Dunscombe was the on-call Administrator. The on-call Administrator is responsible for the institution at night and on weekends, and this duty rotates among the Deputy Superintendents on a weekly basis. On this occasion, Supt. Parisotto delegated his authority as Superintendent during his absence to DS Marchegiano, something he would only do if he were away from the institution for an extended period or a full regular workday. [149] Supt. Parisotto described the usual daily flow of activity in A&D at Maplehurst. Approximately 120 inmates would leave Maplehurst in the morning to attend court and return at the end of the day. Inmates are also coming and going from the institution to attend medical appointments, funerals, and other reasons. All of this activity takes place in A&D. On a typical day, an average of 18 new inmates would be admitted, and Supt Parisotto described the admission process at Maplehurst. When an employee in the criminal justice system (e.g. a police officer or a correctional officer) is admitted, the process is no different, except they are treated as a high-profile inmate, and extra precautions are taken to protect their safety. They would be processed separately to minimize their exposure to other inmates - 42 - who might recognize them. They would be housed separately, likely in segregation, for the same reason. The Ministry has policies and procedures on handling Special Management Inmates that apply when criminal justice system employees are admitted. [150] Supt. Parisotto testified that every correctional facility has a Court catchment area, where inmates are brought after they appear in Court. Maplehurst serves several Court jurisdictions, including Stratford. Sometimes a Warrant of Committal recommends where the inmate should serve their sentence, but if that is somewhere other than Maplehurst, they would still first be brought to Maplehurst and transferred from there. Recommendations on Warrants of Committal are always reviewed and considered. [151] Supt Parisotto described the factors that should be considered when deciding whether a CO admitted as an inmate should be kept at the institution where they are first brought. The main factor would be whether the CO works or has worked at the institution. If so, they would know staff and would probably be familiar with some of the inmates because many are repeat offenders. The potential for preferential treatment arises if a CO inmate knows staff where they are incarcerated, creating a conflict of interest. The potential for harm to a CO inmate arises if they are around inmates they have previously supervised or with whom they have interacted. A recommendation on the Warrant of Committal would also be considered when deciding whether to keep or transfer a CO inmate. A decision about where an inmate is housed is always a staff decision, not the inmate's decision. [152] Supt. Parisotto testified that there are several correctional facilities in the GTA, that some inmates are under the jurisdiction of more than one Court, and that inmates are sometimes moved between facilities to manage numbers. Overall, there is a mixing of the inmate population in the GTA. Institutions in other regions, for example, the Northern Region, are more spread out, and movement between institutions is less frequent. It does not often happen that a CO is an inmate, testified Supt. Parisotto, but when it has, on every occasion that he can recall, steps are taken to move the inmate to a different location if a conflict of interest is known to exist or potentially exist. - 43 - [153] Supt. Parisotto gave evidence about the many Ministry policies and procedures that were not followed while V was at Maplehurst. Inmates are only permitted to be in their own clothing when they first arrive, when they are leaving the institution for court, the hospital, a funeral, or other specific reasons, and when they are discharged. Inmates are only permitted to be in the Vehicle Compound when they come to or leave the institution under escort in special vehicles. The only other conceivable time would be an emergency such as a fire or large-scale internal unrest. [154] Supt. Parisotto testified about the inmate classification process at Maplehurst, which helps determine where they can serve their sentence (both what type of institution and where they will be housed within that institution) based on several risk factors. Classification staff work regular business hours, and it can take 1-2 or sometimes up to 3 weeks for an inmate to be classified. An inmate with a short sentence may never be classified, and it would be rare for any inmate to be classified the day after they are admitted. [155] Supt. Parisotto testified about how an inmate can become a cleaner at Maplehurst. An inmate in the general population can be identified as a cleaner for the unit where they are housed. There is no formal process for this, and they are selected by staff in the unit. Maplehurst has several work programs, where inmates are identified to work in the laundry, the kitchen, and A&D. Inmates who participate in these programs must go through a “Work Board” process, where unit staff and staff from classifications and rehabilitation review and select inmates. An inmate must already be classified to stay at Maplehurst and assigned to a unit before the Work Board can consider them. There are no circumstances in which an inmate would be chosen to clean in A&D without that inmate going through the Work Board process, testified Supt. Parisotto. [156] Supt. Parisotto testified that an inmate held in segregation would not usually be assigned to work outside of the segregation unit. If an inmate is housed in segregation, it is for their safety, and removing them from that area and exposing them to other inmates would place their safety at risk. Overall, inmates only ever clean general areas. Dedicated, paid housekeeping staff are responsible for cleaning areas accessible only to Ministry employees, such as the area where inmate property is kept, the Warrants and Records Offices, and the - 44 - staff break room. As a Deputy Superintendent, Mr. Dunscombe knew or ought to have been aware of this, said Supt. Parisotto. [157] Supt. Parisotto testified that A&D is a very busy area at Maplehurst. The busiest times are Monday to Friday, around 09:00 when inmates leave for Court. Between 09:00 and 13:00, it is still somewhat busy with inmates and others such as immigration detainees being transferred in and escorted out to hospital and other visits. At 13:00, inmates start to return from Court, and it can be busy until as late as 22:00. [158] Supt. Parisotto testified that a member of the Senior Management team, including the Deputy Superintendents, has a higher level of authority than a Sergeant and is expected to set the tone for the institution. A Deputy Superintendent would have a greater influence on the culture of an institution than a Sergeant. It would be unusual for a Deputy Superintendent to meet with an inmate in A&D. A meeting with an inmate in the Vehicle Compound for any period of time would be observed by staff and would likely generate questions about preferential treatment. It would send a message that preferential treatment for that inmate was acceptable, and that message would spread among staff, according to Supt. Parisotto. [159] Supt. Parisotto testified about his expectations for an on-call Administrator if a high- profile inmate was admitted. The on-call Administrator would be notified by staff, and the on-call would provide direction, guidance, and advice and also ensure that the admission process was followed. The on-call would notify the Region and the Information Management Unit. If this were over the weekend when the on-call would be expected to tour the facility at least once, it would be expected that the on-call would follow up on the status of the high- profile inmate, ensure that proper processes had been followed and completed and that appropriate housing had been found. If anything contrary to proper policy or procedure occurred, the on-call would be expected to give proper direction and set expectations going forward. This would apply to the high-profile inmate’s entire stay and not just their admission, testified Supt. Parisotto. [160] Turning specifically to the period of V’s incarceration at Maplehurst, Supt. Parisotto testified that he became aware sometime on Sept. 3 that V was coming to the institution. He - 45 - did not recall the source of this information. At that time, he knew nothing about V except possibly that he was a CO at an institution in the GTA. He did not recall if it was before he left for his extended long weekend that he learned that V had actually arrived at Maplehurst. [161] Supt. Parisotto returned to work at Maplehurst on September 10. DS Marchegiano, who had been covering for him as Acting Superintendent, came to his office and briefed him on what had taken place in his absence. Supt. Parisotto testified that among the pieces of information was a report that V was in the process of being seen by a parole board. He found this odd because it was happening so quickly and asked how this was possible, but not much more information was available. He looked into it and found out that the hearing was for a 72 hour TAP. [162] Supt. Parisotto testified that he found this surprising because there are many steps to preparing a TAP. V had just arrived the previous Thursday before a long weekend leaving only a few working days. He testified that he would have found this odd for any inmate but because V was a CO, Supt. Parisotto was concerned that there may have been preferential treatment to get V a hearing so quickly. He reported all of this to the Region, he testified. [163] Supt Parisotto testified that he either made further inquiries about V’s TAP with Maplehurst staff or directed further inquiries to be made. Other information about V's treatment started to surface, either that day or in the days following his return to work. This included reports that V was being brought to A&D during the day, allowed to wear civilian clothing, and was given access to contraband. On Sept. 11, V was released on a TAP. All of this led Supt. Parisotto to request an investigation by CSOI. [164] Supt. Parisotto testified that he reviewed the notes from the allegation meetings that DRD Houghton conducted. He also participated in a conference call about the allegation meetings with DRD Houghton, Ministry officials and a labour management liaison. Responses to the themes that were brought forward in the allegation meetings were discussed, as was the appropriate level of discipline for employees who had been involved in the preferential treatment of V. - 46 - [165] Common themes that many employees expressed during their allegation meetings included a belief that V should never have been kept at Maplehurst, he should have been transferred to another institution to avoid what occurred, and a view that V’s treatment was acceptable because it was known to management. In the allegation meetings, most employees also acknowledged that with greater awareness, their conduct was not appropriate. There was also a common theme that staff wanted to preserve V’s dignity, but an understanding that preferential treatment for any inmate, regardless of whether they are members of the law enforcement community, is not acceptable. [166] At the hearing, Supt. Parisotto reviewed Mr. Dunscombe’s allegation letter and Mr. Dunscombe’s responses in the allegation meeting. He testified that these became the framework for the letter of dismissal. He testified about the seriousness of the allegations and the adequacy of Mr. Dunscombe’s responses. [167] According to Supt. Parisotto, Mr. Dunscombe ought to have followed the recommendation on the Warrant. Given their work history together and the likelihood that other staff at Maplehurst knew V, either from Toronto West or ICIT, the problems that arose were foreseeable. It was important that Mr. Dunscombe file a Special Processing Alert in OTIS that V was a suicide risk. He did not do so and never explained why. Mr. Dunscombe’s response to the allegation about the meeting with V in the Vehicle Compound showed that he did not accept the seriousness of his behaviour. He tried to justify what he did rather than fully acknowledge that it was inappropriate. He should have removed himself from the situation immediately and ensured that nothing like that happened again. Instead, his presence sent a message to staff that it was acceptable, and this set the tone for future similar violations of policy and procedure. [168] As to Mr. Dunscombe’s professed belief that V was being used as a cleaner, Supt. Parisotto testified that it was very hard to believe that Mr. Dunscombe actually believed this, as a high-profile inmate would never be used as a cleaner in A&D and a Deputy Superintendent would or should understand that and why. Mr. Dunscombe’s response did not show that he understood this was a problem and a risk to V’s safety. He did nothing to address the situation, which was another example of him condoning inappropriate treatment. - 47 - Mr. Dunscombe’s answer to the allegation that he ought to have directed V to be processed in a holding cell was technically correct but also evasive and not fully responsive. [169] Turning to the allegations about Mr. Dunscombe’s dishonesty during the investigation by CSOI, Supt Parisotto testified that some of Mr. Dunscombe’s answers were not fulsome, which they are required to be. Other answers, such as his professed lack of awareness of V’s movements and that he was wearing civilian clothes, and his belief that V was a cleaner, were implausible. Supt. Parisotto testified that according to the CSOI report, there were four instances when Mr. Dunscombe was in A&D and saw V, and his answers did not account for all of them. Almost all other staff interviewed clearly recalled their interactions with V. Supt. Parisotto believed that Mr. Dunscombe ought to have recalled much more than he said he did. [170] Supt. Parisotto testified that even though the allegations that Mr. Dunscombe failed to submit a COI and was not truthful about having done so were withdrawn, the totality of the remaining allegations led to the same conclusion: Mr. Dunscombe’s conduct during V’s stay at Maplehurst and his lack of truthfulness during the CSOI investigation warranted dismissal for cause. Overall, Mr. Dunscombe acknowledged that only some of his actions were inappropriate. He insisted that his involvement was grossly overstated or assumed, which shows that he lacked insight into the totality of what had occurred. It was very hard to believe that Mr. Dunscombe was unaware of what was going on as he professed: he was being untruthful, and/or he had failed in his responsibility as a senior manager to address the situations that came to his attention. [171] Supt. Parisotto explained why Mr. Dunscombe was the only employee who was dismissed for cause following the CSOI investigation into V’s preferential treatment. Mr. Dunscombe was a senior manager with a higher level of authority and responsibility than the others, who received discipline ranging from a letter of counsel to a suspension. As part of the Senior Management team, he is supposed to set the tone for the institution and ensure the next level of management follows policies and procedures. He is expected to provide leadership, which includes leading by example. Here, the example that he set was that preferential treatment was acceptable, which resulted in widespread breaches of policy and - 48 - procedure by multiple staff. Many staff said that they thought their treatment of V was acceptable because senior management was aware of it, highlighting Mr. Dunscombe’s meeting in the Vehicle Compound as an example. [172] In addition, other employees, almost without exception, took responsibility for their conduct, acknowledged their wrongdoing, either in their allegation meetings or earlier. Mr. Dunscombe did not fully acknowledge his role in the inappropriate behaviour that had occurred. He responded to the allegations by professing to have no recollection of some events, disagreeing that much of his conduct was inappropriate, and giving half-answers. This showed that he lacked insight into the totality of what had happened and was in marked contrast to other employees. [173] Supt. Parisotto was cross-examined extensively at the hearing. He was unshaken in his view that Mr. Dunscombe should have recognized that V’s presence at Maplehurst as an inmate presented a real potential for conflict of interest and preferential treatment. He was unshaken in his view that Mr. Dunscombe was aware that V was receiving preferential treatment. He agreed that before the events that occurred with V and the subsequent investigation by CSOI, he had no concerns about Mr. Dunscombe’s judgement or his honesty. [174] Supt. Parisotto agreed that Mr. Dunscombe had the discretion not to follow the recommendation on the Warrant. He agreed that based on the information he had before he left work on September 3, V would be housed at Maplehurst. He disagreed that an institution’s proximity to an inmate’s family was a reason to consider when deciding whether an inmate should be transferred. [175] Supt. Parisotto was unshaken in his view that V should never have been allowed to work as a cleaner in A&D and that Mr. Dunscombe ought to have recognized this. - 49 - Mr. Dunscombe’s Evidence at the Hearing [176] The Letter of Dismissal repeats the allegations in order and summarizes Mr. Dunscombe’s responses during the allegation meeting. At the hearing, Mr. Dunscombe provided additional comments on the allegations/grounds for dismissal. Each allegation in DRD Houghton’s letter is set out below, followed by Mr. Dunscombe’s evidence. Allegation #1. You participated in and condoned the preferential treatment being given to inmate V. by failing to act and exercise your delegated authority and by willfully participating in actions that were contrary to Ministry regulations. Specifically: Allegation #1a. You failed to follow the recommendation of the inmate V’s Warrant of Committal and follow best practice by arranging for V to be transferred to an alternate facility outside of the Greater Toronto Area. This resulted in V receiving preferential treatment while incarcerated at Maplehurst from Sept. 3, 2015 until Sept. 11, 2015 inclusive. [177] At the allegation meeting, Mr. Dunscombe admitted this with an explanation. He said that the Warrant contained a recommendation but not an order. After discussion with V and with DRD Lucier, it was determined that the best course of action would be to keep him for a few days and re-evaluate. A part of these deciding factors was that V had expressed concerns about being moved away from community supports who would be unable to travel to the recommended facility. During the original consultation, it could not be foreseen what would occur. [178] At the hearing, Mr. Dunscombe acknowledged that he did not follow the recommendation on the Warrant but that he had consulted with DRD Lucier to sort out how it should be acted upon. He had expressed to her that V wanted to stay at Maplehurst. Allegation #1b. You failed to provide direction to Admission and Discharge (A&D) managers to ensure that a Special Processing Alert was entered in OTIS despite having - 50 - knowledge that inmate V. was a vulnerable individual with past suicidal ideations, contrary to policy. [179] Mr. Dunscombe admitted this in the allegation meeting. Allegation #1c. You permitted V to be out of secured custody in the Vehicle Compound, contrary to policy on Sept. 3, 2015 between 16:20 and 17:45. [180] At the allegation meeting, Mr. Dunscombe admitted this but added that he considered the vehicle compound a secure area because it was designed to contain inmates and that V was escorted while he was there. He acknowledged that it was an inappropriate area to have a discussion with V. [181] At the hearing, Mr. Dunscombe added that he should have brought V inside. Allegation #1d. You failed to direct staff: i. To remove V from the Vehicle Compound; [182] At the allegation meeting, Mr. Dunscombe reiterated that he did not see the Vehicle Compound as an unsecure area and that he did not see V as a security risk, but acknowledged that it was inappropriate for V to be there. [183] At the hearing, Mr. Dunscombe added that he should have made it clear to whoever had brought V into the Vehicle Compound that this was wrong and that it should not happen again. Allegation #1d. You failed to direct staff: ii. To cease providing contraband (cigarettes and cellular telephone) to inmate V; [184] At the allegation meeting, Mr. Dunscombe said that he did not see V receive either of these items. - 51 - [185] At the hearing, Mr. Dunscombe confirmed this answer. Allegation #1d. You failed to direct staff: iii. To have inmate V dressed in the inmate issued clothing; [186] At the allegation meeting, Mr. Dunscombe said that during his initial meeting with V, he believed that he had not yet been processed and therefore would still have been in his street clothes. [187] At the hearing, Mr. Dunscombe was asked when he had seen V in civilian clothes. He answered that he saw V in civilian clothes shortly after he arrived, then again in their second discussion that same day, and then again on September 8. Allegation #1d. You failed to direct staff: iv. To remove inmate V from A&D and return him to his cell; [188] At the allegation meeting, Mr. Dunscombe said that the first time he saw V, he believed he was still waiting to be processed. The second time he saw him, he understood that he had been classified to be used as a cleaner in A&D. [189] At the hearing, Mr. Dunscombe clarified that by “the second time he saw him,” he meant the second day he saw him, which was September 8. Allegation #1d. You failed to direct staff: v. To admit/process inmate V in a holding cell. [190] At the allegation meeting, Mr. Dunscombe said that he would not give that direction, as the booking process takes place out of the cells and inmates are processed at a booking desk. [191] At the hearing, Mr. Dunscombe said that this was an example of an allegation that he answered exactly as it was written and that he did not believe that his answer could have been more fulsome. He added that he would have no involvement in the booking process - 52 - unless he was specifically asked. He was not aware of any rules or policies that required him to participate in the booking of a high-profile inmate. Allegation #1e. You improperly provided inmate V with a letter of support on Ministry letterhead to be used for inmate V's criminal court matter. This letter was also utilized for inmate V's TAP hearing with the Ontario Parole Board contrary to policy. [192] At the allegation meeting, Mr. Dunscombe denied this, saying that he provided the letter for a child custody case and that V had not committed or been charged with any criminal offence when he wrote the letter. He added that he did not authorize the use of that letter for any other matter. [193] At the hearing, Mr. Dunscombe said there was nothing untrue about his answer and that he was not aware that writing a letter was contrary to any policy, Allegation #2. You made the following false statements during the Correctional Services Oversight and Investigation (CSOI) Unit investigation: Allegation #2a. Stating that you filed a Conflict of Interest Declaration; when you did not; [194] At the allegation meeting, Mr. Dunscombe denied this, saying that he filed a COI with DS Marchegiano the morning after V’s admission. [195] At the hearing, Mr. Dunscombe said he was taken aback by this allegation because he was certain that he had filed a COI. He added that this made him feel that nothing he said was being believed and that he had never been told during the CSOI investigation that DS Marchegiano had said he had not filed a COI. Allegation #2b. Falsely reporting and misrepresenting your conversation with Deputy Regional Director Lucier on September 3, 2015, during which you discussed her - 53 - recommendation to move inmate V to another institution, which was consistent with the recommendation on the Warrant of Committal; [196] At the allegation meeting, Mr. Dunscombe denied this, saying that if DRD Lucier had instructed him to transfer V he would have done so immediately. He added that he generated an Incident Report when V was admitted and that there would have been an updated Incident Report following his transfer. [197] At the hearing, Mr. Dunscombe confirmed that he never falsely reported his conversations with DRD Lucier. Allegation #2c. Stating that you were unaware of inmate V's movement at Maplehurst during the period from September 3-11, 2015 inclusive despite video evidence and subject/witness employee statements; [198] At the allegation meeting, Mr. Dunscombe denied this with one exception, namely that he had approved the request to transfer V to the infirmary because he was told that space was needed in segregation. He was otherwise unaware of his movements. [199] At the hearing, Mr. Dunscombe said he understood the question to refer to how V was moved through the institution and not V’s location. That is, he thought the allegation was about whether V had been moved through unauthorized areas, such as “staff only” corridors. Mr. Dunscombe added that he did not think the allegation related to V’s location, only his movement through the institution. He was never asked, and consequently never denied, that V had been in A&D. Allegation #2d. Stating that V was being used as a cleaner in A&D when V was not being used as a cleaner in A&D; [200] At the allegation meeting, Mr. Dunscombe denied this, saying that he understood that V had been classified to be used as an A&D cleaner. - 54 - [201] At the hearing, Mr. Dunscombe confirmed that he had been told that V was being used in A&D as a cleaner and that nobody had told him anything different. He added that while V was at Maplehurst, he did not know about any of the preferential treatment that V was receiving. Allegation #2e. Stating that you could not recall if V was dressed in the inmate issued orange jumpsuit despite video evidence of you in the presence of V in civilian clothing; [202] At the allegation meeting, Mr. Dunscombe said that during his CSOI interview, he did not recall what V was wearing but that since that time, he recalled discussing the matter with DS Frankovich after her return from A&D. Mr. Dunscombe said that before he had a chance to address the situation, DS Frankovich contacted the A&D manager in his presence and directed V to be changed and moved. [203] At the hearing, Mr. Dunscombe said that he saw V in civilian clothes twice on September 3 and again on September 8. He added that he believed he had been clear in the allegation meeting that these were the only times he had seen V in civilian clothes. Allegation #2f. Stating that you could not recall being in the Vehicle Compound with V despite video evidence of you in the Vehicle Compound with inmate V on Sept. 3, 2015 between 16:20 and 17:48 ; [204] At the allegation meeting, Mr. Dunscombe denied that this was a false statement. He said he did not recall this during his CSOI interview and that he still had a very limited recollection of it. [205] At the hearing, Mr. Dunscombe said he could not explain why he did not recall being in the Vehicle Compound when CSOI interviewed him. The CSOI inspectors told him that they had video, and he had told them that if they did, he did not deny it. He insisted that he had not denied that he had been in the Vehicle Compound, just that he could not remember it. - 55 - Allegation #2g. Stating that you could not recall a conversation with V on Sept. 8, 2015 at 12:16 to 12:22 despite video evidence showing that you attended A&D and met with V in a holding cell; [206] At the allegation meeting, Mr. Dunscombe said that during his CSOI interview, he told the inspectors that he went to see V (on September 8) to ask him which credits he wanted to use to cover his absence from work at the request of DS Chillman. The inspectors had told him that this was incorrect because DS Chillman had sent him the letter for V on September 9. Mr. Dunscombe said this had confused him, so he told the inspectors that he did not recall what was discussed on September 8. He added that his recollection was correct because it showed that he relayed the information from V to DS Chillman allowing him to write the letter to V the following day (September 9). [207] At the hearing, Mr. Dunscombe said that during his CSOI interview, he was asked about September 8, and he did not have a clear recollection of that day. One of the inspectors had prompted him that he had papers in his back pocket, which triggered him to recall when he had visited V to find out about his use of his credits. The inspector replied that this had happened on September 9 and had stated this as a fact. Mr. Dunscombe said he had responded to the inspector that if those events had happened on September 9, he did not remember what he and V had talked about on September 8. Mr. Dunscombe added that this was another example of how he had been treated unfairly during the investigation because the inspectors had misinformed him. Allegation #2h. Stating that you could not recall any conversations relating to V's Temporary Absence Program (TAP) application despite statements made by subject/witness employees. [208] At the allegation meeting, Mr. Dunscombe denied that this was a false statement, saying that the only conversation he had about the TAP was that he wanted nothing to do with it, and that this was with senior managers. - 56 - [209] At the hearing, Mr. Dunscombe confirmed this answer and said that he thought the allegation was suggesting that he had been part of initiating the TAP, which he had had nothing to do with. He added that he knows nothing about the TAP process and that this is a weak point in his knowledge. The allegation that he had had something to do with a process that he knew nothing about shocked him. Allegation #3. You failed to file a Conflict of Interest Declaration indicating that you had a personal relationship with V, contrary to policy and regulations. [As noted above, this allegation was withdrawn at the hearing.] Submissions Employer Submissions [210] As a Deputy Superintendent of Maplehurst, Mr. Dunscombe occupied a position of significant authority and trust, argued the Employer. He was part of the Senior Management team whose behaviour sets the tone at the institution. He was in a position of great responsibility and discretionary authority, and he was expected to use his best judgement at all times. Mr. Dunscombe was also the on-call Administrator when V was admitted to Maplehurst and throughout the events that led to the investigation by CSOI. [211] Mr. Dunscombe’s conduct with respect to V was unacceptable, and he failed to show leadership and be accountable. His behaviour also conveyed a message to staff at Maplehurst that V should be given preferential treatment. These lapses in judgement go to the heart of Mr. Dunscombe’s responsibility to ensure the care and safety of inmates. His behaviour has irreparably harmed the trust that the Employer must have in its senior managers, and the employment relationship can't be successfully restored. [212] Mr. Dunscombe’s behaviour was contrary to the Conflict of Interest Rules for Public Servants (Ministry) and Former Public Servants (Ministry) O.Reg 381/07, specifically s. 6.(1) which prohibits preferential treatment in the course of the performance of duties. His behaviour was in breach of many MCSCS Ministry policies and procedures, including but - 57 - not limited to: the Ministry's Institutional Services Policy and Procedures Manual, Institutional Standing Orders and the Ontario Correctional Services Code of Conduct and Professionalism (COCAP). In particular, COCAP says that managers have a leadership role in creating and maintaining a workplace where standards of conduct are promoted, upheld, and exemplary behaviour is recognized. Managers have an additional responsibility to model appropriate behaviour and promote and monitor employees’ compliance with applicable policies, procedures, and guidelines. They are to set an example through their own behaviour and take prompt and effective steps to address unprofessional conduct. Mr. Dunscombe failed to meet these expectations, argued the Employer. [213] There are two main grounds for dismissal, submitted the Employer. Mr. Dunscombe participated in and condoned V’s preferential treatment, and he was deceitful during the investigation by CSOI. The preferential treatment included not following the recommendation on the Warrant of Committal, not ensuring that a Special Processing Alert was entered in OTIS, allowing V to be in the Vehicle Compound for an extended period and to have access to contraband, and allowing him to wear civilian clothing and spend his days in A&D. It also includes failing to direct staff to stop these various forms of preferential treatment. Mr. Dunscombe’s answers during his CSOI interview, including his claims about not being able to recall highly memorable events, his belief that V was a cleaner, and his claim that he was unaware of V’s movements, were simply not believable, argued the Employer. Video footage showed V moving freely around A&D. Ms. Franzon conducted many interviews, and all but one front-line staff clearly recalled V and how he was treated. Ms. Franzon was not biased against Mr. Dunscombe, despite efforts to make her appear so when she was cross-examined, argued the Employer. [214] DRD Houghton conducted Mr. Dunscombe’s allegation meeting. Supt. Parisotto made the decision to terminate Mr. Dunscombe’s employment, and he relied on the answers that Mr. Dunscombe gave in the allegation meeting, so the Board should consider DRD Houghton’s evidence, which was clear, unequivocal, and unshaken in cross-examination. [215] DRD Houghton testified that Mr. Dunscombe should have followed the recommendation on the Warrant of Committal. Recommendations are followed unless there - 58 - is good reason not to follow them, and there were no good reasons in this case, argued the Employer. To say that the Judge’s endorsement was “a recommendation and not an order,” as Mr. Dunscombe did, is a cop-out. It was likely that staff at Maplehurst would have worked with V, so DRD Houghton’s conclusion that there was a potential for preferential treatment, and was foreseeable, was to be preferred. Mr. Dunscombe was a member of ICIT, and so was V, and the presence of other ICIT members at Maplehurst made the potential for preferential treatment even more likely, argued the Employer. [216] DRD Houghton testified that by referring to the Vehicle Compound as secure, Mr. Dunscombe was trying to excuse his behaviour and lessen the seriousness of what he had done. V was in his street clothes, he had more than likely not been strip-searched, and he was being given contraband hours after he entered Maplehurst. News of this would have spread like wildfire, and further similar treatment was foreseeable, argued the Employer. It was not plausible that V was a cleaner in A&D, which in any event would have been inappropriate for a high-profile inmate, and DRD Houghton did not believe Mr. Dunscombe’s assertion that V had been classified and assigned to that role. DRD Houghton testified that overall, Mr. Dunscombe was defending the indefensible and had no insight into his wrongdoing. [217] Supt. Parisotto ultimately decided to dismiss Mr. Dunscombe for many of the same reasons. It was clear, testified Supt. Parisotto, that Mr. Dunscombe ought to have transferred V to another institution. The reasons Mr. Dunscombe gave for not doing so, namely V wanting to be closer to his family, should never have outweighed the recommendation in the Warrant of Committal, the likelihood that V would encounter former co-workers and that this could give rise to preferential treatment, and concerns for his safety because he could be identified by an inmate. Supt. Parisotto also testified that it was implausible that V was, in fact, a cleaner in A&D and that Mr. Dunscombe’s professed belief in this could not have been sincere. V ought to have been treated as a high profile inmate throughout his stay. Aside from Mr. Dunscombe’s initial participation in and condonation of the preferential treatment of V in and around the Vehicle Compound there were many times during V’s stay when Mr. Dunscombe ought to have done something, at a minimum by asking questions about V’s treatment, or by directing staff to follow proper procedures. That he failed to do so, - 59 - particularly with a High profile inmate, caused Mr. Parisotto to completely lose confidence in Mr. Dunscombe and conclude that he could no longer trust him. [218] The Employer argued that while Mr. Dunscombe admitted some of his behaviour and conceded that he could have done some things differently, he showed limited insight into his mistakes, and his contrition was similarly limited. He has also refused to admit many of his mistakes, including not transferring V elsewhere in the first place and participating in what can only be described as the ruse that V was a cleaner in A&D. [219] There is abundant evidence that Mr. Dunscombe saw V in civilian clothes in the Warrants Office on September 4, yet Mr. Dunscombe continued to deny this, argued the Employer. However, even accepting his evidence that he did not actually see V that day, Mr. Dunscombe continued to argue that his response was adequate when he was told that V was handling confidential documents in the Warrants Office. His bad judgment and poor decision-making had serious consequences for staff, but he showed very little insight into or remorse for this. His refusal to admit many of his mistakes, together with his lack of insight and remorse, has made the employment relationship unsalvageable. [220] The Board has been clear that a higher standard of conduct is expected for managers, and Mr. Dunscombe’s behaviour fell below that standard, argued the Employer. Reviewing the entire context of his dismissal, Mr. Dunscombe’s misconduct was serious, contrary to regulations and many policies and procedures, and a complete failure of leadership. It was not premeditated, but neither was it a single, spur of the moment action. His behaviour took place over several days and involved a pattern of bad judgement, ignoring obvious warnings that something was amiss, failing to take action, and very poor decision making. He also gave misleading answers during the investigation by CSOI, which is extremely serious and further undermined the employer’s trust and confidence. Dismissal for cause was the appropriate response by the Employer, and Mr. Dunscombe’s length of service and discipline-free record are not enough to warrant a lesser penalty, argued the Employer. The termination of Mr. Dunscombe’s employment should be upheld, argued the Employer, and the complaint should be dismissed. - 60 - [221] The Employer referred to the following decisions in support of its position: McKinley v. BC Tel, [2001] 2 S.C.R. 161, 2001 SCC 38; Gronski v. Ontario (Community Safety and Correctional Services), 2015 CanLII 67988 (ON PSGB) (O’Neill); Huppmann v. Ontario (Solicitor General), 2019 CanLII 86415 (ON PSGB) (Devins); Jones v. Ontario (Community Safety and Correctional Services), 2013 CanLII 74166 (ON PSGB) (Leighton); Dyson v. Ontario (Community Safety and Correctional Services), 2014 CanLII 8245 (ON PSGB) (Carter); Bardal v. Globe & Mail Ltd., 1960 CarswellOnt 144, [1960] O.W.N. 253, [1960] O.J. No. 149, 24 D.L.R. (2d) 140; London Board of Education v. O.S.S.T.F., District 4, 1984 CarswellOnt 2450, 14 L.A.C. (3d) 17 (Brandt) Complainant Submissions [222] Counsel for Mr. Dunscombe argued that the investigation by CSOI was tainted by confirmation bias. The investigator reviewed the video evidence, decided who was guilty, and looked for evidence to substantiate her decision. The investigator established a narrative that emphasized the friendship between V and Mr. Dunscombe. The investigator also decided that Mr. Dunscombe set out to deceive DRD Lucier. This tainted the evidence, and DRD Lucier’s version of events was preferred, even though it later emerged that Mr. Dunscombe’s recollection was more accurate. [223] Mr. Dunscombe had a good reason not to follow the Warrant of Committal recommendation. V arrived at Maplehurst worried and upset. Mr. Dunscombe was concerned about V and agreed to keep him at Maplehurst out of concern for his well-being. Humanitarian concerns should not be left at the door, and if they are not a good reason to ignore a judge’s recommendation, then we have lost the purpose of corrections, counsel argued. [224] In counsel’s submission, the public would not care that V was allowed to wear civilian clothes, had access to regular showers, was let outdoors to smoke, or that staff brought him outside food and coffee. More concerning to the public and the Ministry’s reputation would be the TAP, which effectively meant that V served less time than an average inmate given the same sentence. The employee involved in the TAP received a 10 day suspension, which - 61 - shows how important that misconduct was to the Ministry. The discipline imposed on Mr. Dunscombe, who had no involvement in the TAP, should be compared accordingly, argued counsel. [225] The investigator decided that Mr. Dunscombe was deceitful during the CSOI investigation, but she testified that this was partly based on not finding the COI declaration. This was an important part of the Employer’s case, but it dropped out of the picture when the declaration was later found and the allegation was retracted. The investigator’s conclusion that Mr. Dunscombe was deceitful was also based on his failure to remember any of the times he met with V other than their first brief meeting on September 3 and the other time Mr. Dunscombe went to A&D to deliver the message from DS Chillman on September 8. The findings that Mr. Dunscombe saw V at other times and was aware of his movements were based on the evidence of other witnesses whose memories could have been faulty. The investigator also confused Mr. Dunscombe by putting incorrect dates to him, argued counsel. [226] The Employer says that Mr. Dunscombe’s behaviour influenced the way the COs treated V. Mr. Dunscombe has admitted that he may have opened the door to the preferential treatment, but it is unfair to blame him for everything that happened. The evidence, particularly from CO Black, shows that a decision to treat V differently had already been made before Mr. Dunscombe met with him in the Vehicle Compound. Although Mr. Dunscombe did not actively discourage the preferential treatment, he did not cause it to happen, argued counsel. [227] Counsel submits that there is no evidence that Mr. Dunscombe knew about most of the preferential treatment. The single incident that Mr. Dunscombe was aware of, that V was in the Warrants Office handling documents, he put an end to immediately. Even Sgt. Gallagher, who was supposed to be Mr. Dunscombe’s “eyes and ears,” told him very little about what was going on in A&D. There was no reason for Mr. Dunscombe to think that V was not being used as a cleaner. He was told this, and he had no reason to disbelieve it. When he met with V on September 8 and realized that V was in his civilian clothes, he told DS Frankovich. Mr. Dunscombe was going to take action, but DS Frankovich did so first, argued counsel. - 62 - [228] The Employer has argued that Mr. Dunscombe has shown little remorse for his actions, but how can he show remorse for not stopping behaviour that he did not know about. Mr. Dunscombe has shown insight into what happened. He now wishes he had quizzed Sgt. Gallagher about her concerns when she came to him. He admits that he was not as familiar with the steps that led to V being classified as a cleaner as he should have been. Mr. Dunscombe may have missed clues that he should have picked up on, but there is no reason to find that he should have transferred V out of Maplehurst. Mr. Dunscombe is remorseful and he has learned from his mistake, argued counsel. [229] Counsel submits that while Mr. Dunscombe’s conduct should attract some discipline, it does not warrant dismissal. He set a bad example and played into the hands of others. He showed bad judgement. However, his role in V’s preferential treatment has been overblown. This was a single incident and not a pattern of misconduct or repeated misbehaviour. It was not premeditated, and it arose during unique circumstances. Mr. Dunscombe remained at work until September 2016, one year after V was at Maplehurst, at which time he was suspended with pay pending the outcome of the investigation by CSOI. There is no evidence of any repetition of a similar lack of judgement during that time. The facts do not warrant the severe punishment of dismissal for cause. Where the Board has upheld a dismissal for cause, the misconduct has been far more serious. [230] Mr. Dunscombe has 16 years’ service and no record of previous discipline. He was relatively new to a senior management position. He has shown remorse and learned from his mistakes. An appropriate penalty would be a 10 day suspension. This would be sufficient to deter this kind of behaviour in the future, argued counsel. [231] Counsel for Mr. Dunscombe agreed that the basic principles set out in the authorities relied on by the Employer were applicable and referred to the following additional decisions in support of his client’s position: Ontario Public Service Employees Union (Bisaillon) v. Ontario (Community Safety and Correctional Services), GSB #2012-2847 (May 20, 2016) (Herlich); Bazger v. Ontario (Community Safety and Correctional Services), 2017 CanLII 25423 (ON PSGB) (O’Neil); Keating v. Ontario (Community Safety and Correctional - 63 - Services), 2009 CanLII 15648 (ON PSGB) (O’Neil); Potter v. Ontario (Community Safety and Correctional Services), 2018 CanLII 102749 (ON PSGB) (Tremayne). Analysis and Findings What was the extent of Mr. Dunscombe’s misconduct? Maplehurst, September 3-11, 2015: Mr. Dunscombe’s Role [232] The Board has consistently held that managers in a correctional facility are held to a higher standard of conduct than the staff they supervise. Managers are expected to demonstrate good judgement and a high degree of commitment to following policies and procedures. There is also an expectation that managers will perform a modelling role in leading by example. These principles, as set out in Gronski, supra, at para. 121, and Huppman, supra, at para. 115, and others, were developed in the context of decisions involving the dismissal of Sergeants and other “front-line” managers. In Mr. Dunscombe’s case, the Board is dealing with a senior manager, a Deputy Superintendent. In an institutional setting within corrections, this is the second-highest level of institutional management, the highest being the Superintendent and the position to which the Deputy Superintendent reports. This is the first time that the Board has dealt with the dismissal of a Deputy Superintendent on the merits. [233] A senior manager such as a Deputy Superintendent occupies a position of trust, significant responsibility, and considerable authority. A senior manager is expected to demonstrate leadership and fulfill their duties with integrity and professionalism at all times, with little or no monitoring or supervision. A senior manager is expected to set the standard for and lead other managers, including leading by example. It stands to reason that a senior manager should be held to a higher standard of conduct than those who report to them. With greater responsibility and authority come higher expectations, which in turn come with a very high level of accountability. - 64 - [234] Mr. Dunscombe was a Deputy Superintendent, Operations at Maplehurst and the on- call Administrator when V was admitted to Maplehurst and at all material times during V’s incarceration there. Mr. Dunscombe and his spouse, Sgt. Core, who also worked at Maplehurst, knew V because they had worked together at Toronto West. Mr. Dunscombe and Sgt. Core knew V well enough to be aware of some aspects of V’s personal life when they worked together, and Mr. Dunscombe knew V well enough to write a letter of support for a family law matter. They also knew V well enough to spend nearly an hour with him when he was first admitted to Maplehurst because V was distressed, and they were concerned about him. Mr. Dunscombe knew him well enough to file a COI identifying his past working relationship with V. [235] On September 3, 2015, DRD Lucier told Mr. Dunscombe that V was coming to Maplehurst. Mr. Dunscombe told her that he knew V, that they had worked together at Toronto West, and that V had been on his ICIT team. He testified that he told DRD Lucier that he would take care of it and submit an IIR when V arrived. The last sentence in the “Details and Circumstances of Incident” section of the IIR, which Mr. Dunscombe wrote, signed, and sent to the Regional Office at 16:30, says. “Mr. [V] will be housed in Segregation and kept separate from all other offenders.” [236] Mr. Dunscombe did not tell Ms. Lucier that he had written a letter of support for V for a family law matter, nor did he tell her that his spouse, Sgt. Core, had also worked with V at Toronto West. He also did not mention these important facts in his second conversation with DRD Lucier, which will be addressed below in greater detail. [237] V was upset when he arrived at Maplehurst. He and Mr. Dunscombe had a conversation about where V was going to be housed. V testified that he told Mr. Dunscombe that he wanted to go where he did not know anyone and did not want to be a problem for anyone. Mr. Dunscombe testified that V told him that when he was in Court, he thought he wanted to get away, but he now realized that this would make things harder on his family and himself. V asked him if it would be possible to “stay here," meaning Maplehurst. - 65 - [238] Mr. Dunscombe confirmed that he had brought up the possibility of V staying at Maplehurst. When cross-examined, Mr. Dunscombe agreed that V had not asked to be kept at Maplehurst. All he asked was to be kept safe. Mr. Dunscombe’s asserted knowledge of V’s history of suicidal ideations and concerns about his mental state and vulnerability were some of the reasons he went to see V when he first arrived at Maplehurst, and were also reasons why he thought V should be at Maplehurst, close to where V’s family lived. [239] Mr. Dunscombe knew that V was a high profile inmate and that high profile inmates should be housed in segregation for their own safety. He also knew that there are many reasons to consider transferring a high-profile inmate to an institution where they are less likely to be recognized by inmates or be known to staff. Mr. Dunscombe knew that his and Sgt. Core’s work history with V and the fact that other staff at Maplehurst knew V were also reasons to consider transferring V. [240] There is no dispute that Mr. Dunscombe had the authority to transfer V to another institution on his own initiative. He could have decided to do so without DRD Lucier’s approval but in consultation with the receiving institution. [241] One of the pictures that emerges from this evidence, nearly all of which is based on Mr. Dunscombe’s own testimony at the hearing, is that Mr. Dunscombe decided that V would stay at Maplehurst. The other picture that emerges is that admitting V to Maplehurst and keeping him there was fraught with risk. [242] The main reason advanced at the hearing by Mr. Dunscombe for his decision to keep V at Maplehurst was his humanitarian concern for V. This asserted concern does not withstand scrutiny, however. First, Mr. Dunscombe admitted that he did not ensure that a Special Processing Alert was entered in OTIS even though he claimed to have known about V’s history of suicidal ideations and concerns about his mental state and vulnerability. Second, there is virtually no evidence before the Board that Mr. Dunscombe showed any interest in or concern for V (humanitarian or otherwise) for the remainder of his period of incarceration at Maplehurst. - 66 - [243] As to the first point, if Mr. Dunscombe was genuinely concerned that V’s history, as well as his being upset at the time of his admittance, manifested a risk to his health and safety, Mr. Dunscombe’s admitted failure to take steps to address that risk by making the appropriate OTIS entry was a grievous omission. It also showed a callous disregard for the health and safety of an inmate. The second point requires a more detailed review of the evidence about Mr. Dunscombe’s conduct towards V in the days following his admission. Equally important is how Mr. Dunscombe responded when it started to emerge that there was something unusual about how V was being treated by staff. [244] Returning to the day that V arrived at Maplehurst, September 3, Mr. Dunscombe twice met with V. Their second meeting was a lengthy one, taking place in the Vehicle Compound. Mr. Dunscombe claimed to have little or no memory of this meeting, but the preponderance of the evidence from Sgt. Core and CO Black, who were also present, is that it lasted about 50 minutes, V was in his civilian clothes, and he was given cigarettes and possibly a cell phone. At the hearing, Mr. Dunscombe agreed that this would have left an impression on staff, and it was not disputed that other front-line staff, in addition to Sgt. Core and CO Black, saw the parties, including V wearing civilian clothes, coming and going from the Vehicle Compound. Mr. Dunscombe agreed that even if V had not been smoking, it was a mistake and a very bad example for V to be in the Vehicle Compound. He admitted that he should have had him removed immediately from the Vehicle Compound. [245] V’s presence in the Vehicle Compound and the treatment he received while he was there was contrary to numerous Ministry policies and procedures on the proper handling and treatment of inmates. Mr. Dunscombe’s decision to meet with V in these circumstances showed a very serious lack of judgement. His decision to meet with V for nearly an hour showed even worse judgement. His decision to say nothing whatsoever to staff about these events and V’s treatment that day was an abdication of his responsibility as a senior manager. Mr. Dunscombe did not ask why V was in the Vehicle Compound, still in civilian clothing. V was given contraband in Mr. Dunscombe’s presence. Mr. Dunscombe chose to leave the area without giving any direction to staff about the proper treatment of V. He expressed no displeasure about the multiple breaches of Ministry policy that he had just witnessed, and he took no measures to ensure that they were not repeated. He did nothing. It would appear that - 67 - his personal relationship with V overwhelmed his responsibility as a Deputy Superintendent, and that his mistaken priority actually resulted in a less secure environment for V. Mr. Dunscombe’s conduct that day fell far below the standard of behaviour that the Ministry is entitled to expect from a senior manager. [246] At the hearing, Mr. Dunscombe said that he was at work on Friday, Sept. 4, when he received a call from Ms. Allain, the Records Manager, who told him V was handling warrants. Mr. Dunscombe testified that he called A&D and asked Sgt. Haydar if he had V in the area. Sgt. Haydar replied that he did and that they were using him as a cleaner. Mr. Dunscombe told him about Ms. Allain’s call and her concern that V was handling warrants. He told Sgt. Haydar, “that cannot happen,” and Sgt. Haydar said it would not. Mr. Dunscombe says that he dealt with the situation and heard nothing more about V touching warrants. [247] It is helpful to consider Mr. Dunscombe’s testimony about his response to this situation in context. V had been admitted to Maplehurst the day before. V was a high-profile inmate about whom Mr. Dunscombe claimed to be very concerned. He had decided to keep V at Maplehurst, contrary to the WOC recommendation. V was Mr. Dunscombe’s former co- worker and his spouse’s former co-worker. Mr. Dunscombe had chosen to be in V’s presence for nearly an hour while V received preferential treatment. Mr. Dunscombe had expressed no displeasure about the preferential treatment or given any direction that from that point on, V should be handled properly and according to Ministry policy. He had prepared and signed an IIR that said V would be housed in segregation and kept separate from other offenders. V was known to many staff who worked in A&D. [248] Mr. Dunscombe was ultimately responsible for ensuring V’s care and safety and the safety of staff and other inmates. He was also expected to promote and monitor employees’ compliance with applicable policies, procedures, and guidelines. Notably, in this case, where V was a high-profile inmate known to Mr. Dunscombe and others at Maplehurst, the Ministry’s Conflict of Interest guidelines ought to have been at the top of his mind. Giving an inmate preferential treatment is clearly wrong, and these guidelines exist, in part, to deal with situations exactly like this one where such treatment is likely to arise. - 68 - [249] It is not disputed that on September 4, V was in the Warrants Office and that he had handled confidential paperwork. Mr. Dunscombe addressed the immediate issue, but he failed to raise any concern whatsoever about the surrounding circumstances. Many obvious questions cried out for answers, or at the very least, further investigation. Why had V been handling paperwork? Why was V in the Warrants Office in the first place? Why was V not in segregation? Was V continuing to receive preferential treatment? [250] Mr. Dunscombe’s response to these questions is that he was told that V was being used as a cleaner in A&D. He accepted this at face value and insisted that he was not fully aware of the inmate classification and work board processes, saying that he did not know whether it would have been necessary for V to go through those processes to work as a cleaner in A&D. In essence, Mr. Dunscombe’s evidence, as one of the most senior managers in the institution, is that he did not know enough to properly assess whether the claim that V was being used as a cleaner in A&D was legitimate, but that he did not bother to find out. I find it highly improbable that Mr. Dunscombe was so unaware of the inmate classification and work board procedures and/or the risks associated with having an inmate who had been appropriately assigned to segregation for security reasons present in A&D at any time after he was admitted. He also says that he trusted staff, yet the day before, he had clearly condoned their obvious preferential treatment of V in A&D by failing to call it out. [251] If Mr. Dunscombe had been properly discharging his duty to ensure the care and safety of V and promote and monitor employees’ compliance with applicable policies, procedures, and guidelines, he ought to have, at the very least, inquired further and asked some very basic questions. It is laudable that he trusted staff, but the admission of a high-profile inmate was an unusual event, and the incarceration of a working CO was extremely rare. It was Mr. Dunscombe’s job to ensure that staff knew what they were doing and treated V properly. It is reasonable to expect a senior manager to trust staff, but the Ministry is also entitled to expect that a senior manager would make sure that staff were correctly following policies and procedures, especially when that senior manager has obvious reason to believe that they may not be doing so. Mr. Dunscombe prepared and signed the IIR confirming that V would be held in segregation. He came to know that V was not being held in segregation and was - 69 - advised that V was working as a cleaner, when it should be obvious to anyone with his level of correctional experience that the reasons for holding V in segregation would be thwarted by his presence in A&D. In other words, trust, but verify. By not taking steps to check that staff were treating V properly, particularly in light of what he knew, Mr. Dunscombe failed in his responsibility as a senior manager. [252] As set out earlier, the evidence as to whether Mr. Dunscombe went to A&D after Ms. Allain’s phone call and saw V was contradictory and resolving that factual issue depends on the credibility and reliability of the evidence, having regard to what is most reasonable and probable in all of the circumstances. Mr. Dunscombe insisted that he did not go to A&D on September 4, nor did he see V. It was not disputed that V was in A&D and in his civilian clothes that day, so if Mr. Dunscombe had seen him, this flagrant breach of policy would have been obvious. [253] Although I have considered the demeanour of the witnesses when they gave their evidence as well as the firmness of their professed recollections, I am mindful of the passage of time since many of the alleged incidents took place, as well as the fact that not all of the evidence in these proceedings was given in person. As a result, I have given very little if any weight to these somewhat more traditional considerations. [254] In the leading case on the subject, the Courts have described the assessment of the credibility of witnesses as follows: “In short, the real test of the truth of the story … must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.” (Faryna v. Chorny, 1951 CanLII 252 (BC CA), pp. 356-357). [255] I have placed much greater emphasis on the clarity, consistency and overall plausibility of each witness’ evidence when compared to the evidence of other witnesses. I have also carefully considered the ability of all witnesses to resist the influence of self-interest and self- justification when providing evidence and framing their answers. I have taken into account the consistency of witness’ evidence with other evidence, when available, as well as whether the assertions of witnesses, if any, were consistent with, or corroborated by, other objective - 70 - evidence. Finally, I must consider what seems most likely in all the circumstances as established by the reliable evidence. [256] CO Black’s testimony on this point was credible. V’s admission and incarceration were unusual, and CO Black knew him from ICIT training. CO Black, along with nearly every other employee interviewed during the investigation by CSOI, clearly recalled many of the details of V’s incarceration because it was a memorable event. CO Black’s evidence was also one of many examples of correctional staff interviewed during the investigation who admitted to improper conduct and the inappropriate and preferential treatment of V, indicating that he was able to resist the influence of self-interest and self-justification in his evidence. There is no evidence that CO Black bears any ill will towards Mr. Dunscombe. Finally, CO Black did not have an opportunity to respond to Mr. Dunscombe’s evidence on this crucial point because it was not put to him when he testified. Ms. Allain’s evidence, while somewhat vague, aligns more with CO Black’s evidence than it does with Mr. Dunscombe’s. [257] I have difficulty with Mr. Dunscombe’s evidence on this point for several reasons. First, there are large gaps in Mr. Dunscombe memory of the events surrounding V’s incarceration, notwithstanding the uniqueness of the event and his personal knowledge and asserted concern for V. Second, unlike the evidence of nearly every other employee interviewed during the CSOI investigation, Mr. Dunscombe’s recollection seems to be limited to events that do not place him in an unfavourable light. He has consistently resisted admitting to anything that would reflect poorly on his conduct or make it difficult for him to deny that he was aware of V’s preferential treatment before September 8, when steps were finally taken (by others) to remove V from A&D and have him changed into inmate clothing. I am persuaded that Mr. Dunscombe was unable to resist the influence of self-interest and self-justification in his testimony. [258] Finally, despite Mr. Dunscombe’s evidence that he fully and satisfactorily addressed the concern about V handling documents by speaking to Sgt. Haydar, it seems unlikely that Mr. Dunscombe would have dealt with this matter with one brief phone call. There is no dispute that allowing an inmate to handle the confidential paperwork of other inmates is an - 71 - egregious violation of Ministry policies and procedures. It was Ms. Allain’s evidence, which I accept, that she first called Sgt. Haydar, who was not responsive to her concerns. She then called Mr. Dunscombe, telling him, among other things, that she was not satisfied with Mr. Haydar’s response. Sgt. Haydar’s reluctance to address Ms. Allain’s concern that V was handling paperwork, independently of an intervention by Mr. Dunscombe supports a conclusion that Mr. Dunscombe would have gone to A&D to make sure that Sgt. Haydar, and others, were complying with his direction, even if that direction was extremely limited. Mr. Dunscombe would also likely have been concerned about any inmate, even V, handling confidential paperwork, even if he did not share those concerns with anyone else, ask any questions, or issue any general directions to staff. It is more likely than not that, at the very least, he would have paid a short visit to A&D after the call from Ms. Allain, if for no other reason than to satisfy himself that things had not gotten totally out of hand. [259] For all of the reasons set out above, I find that where Mr. Dunscombe’s evidence conflicts with the evidence of the other witnesses, notably CO Black and Ms. Allain, their evidence is to be preferred. As a result, I find that sometime after Ms. Allain’s phone call, Mr. Dunscombe went to A&D and spoke directly to V. There is no dispute that V was wearing civilian clothes throughout the day while he was in A&D on September 4. Mr. Dunscombe observed these serious breaches of Ministry policy and procedure but did nothing about it. This was a very significant failure by Mr. Dunscombe to discharge his duties and responsibilities in the manner expected by the Ministry. [260] Having found that Mr. Dunscombe met with V in A&D on September 4 while V was wearing his civilian clothes, this also seriously undermines the plausibility of whether V was, in fact, being used as a cleaner. It is not disputed that V never wore the attire that an inmate cleaner would have usually worn, and the limited evidence before the Board on this point is that nobody ever saw V with cleaning equipment or doing the work of a cleaner. Had Mr. Dunscombe been showing any degree of situational awareness when he met with V, he would have noticed some signs that V was not being used as a cleaner in A&D. At the very least, he would have had enough information (together with the undeniable fact that V was wearing civilian clothes) to question what staff were telling him. He failed to make any inquiries or ask for any explanation, which strongly suggests that he condoned the COs - 72 - actions and their treatment of V. For all of these reasons, I find that as of September 4, it would have been apparent to Mr. Dunscombe that the explanation he had been given for V’s presence in A&D was implausible. Mr. Dunscombe should have addressed this very serious violation of Ministry policy and procedures and issued guidance and directions to staff accordingly. This was his duty as a senior manager, and he failed to do it. [261] Moving to the remaining days of V’s time at Maplehurst, Mr. Dunscombe’s responsibility as the on-call Administrator was to complete one tour of the facility over the weekend. He did his tour on the holiday Monday, September 7. He testified that he did what he usually does: review paperwork and tour the institution. He did not see V, saying that there was no reason for him to follow up on V unless an issue had been brought to his attention. [262] It is helpful to consider Mr. Dunscombe’s behaviour on September 7 in context. By that time, Mr. Dunscombe had seen V in A&D in his civilian clothes. Mr. Dunscombe had to have been aware that there had been numerous breaches of policy and procedure relating to V’s treatment on September 3 and 4, but he had asked no questions and conducted no follow- up. He had given no general guidance and issued no directions to staff other than to put an end to the specific and narrow (yet nevertheless egregious) breach of security and confidentiality that occurred when V handled paperwork in the Warrants Office. Yet when he toured the facility as the on-call Superintendent on September 7, Mr. Dunscombe did not see V. He did not ask whether any further issues had arisen regarding staff treatment of V. He had approved moving V from segregation to the infirmary but made no inquiry as to whether any issues had arisen as a result. Mr. Dunscombe provided no guidance, direction, or support to staff who were continuing to deal with the highly unusual circumstances of the incarceration of a working CO. There is no evidence before the Board that Mr. Dunscombe made even the most basic inquiries about these matters. [263] That Mr. Dunscombe did not see or ask about V also seriously undermines Mr. Dunscombe’s testimony that he was motivated to keep V at Maplehurst out of a concern for his safety - so concerned that he chose not to follow the recommendation on the Warrant of Committal. It stands to reason that a person so motivated would want to be kept apprised of - 73 - V’s condition. Yet, there is no evidence that Mr. Dunscombe did anything to manifest such concern before, during, or after he toured the institution. [264] However, Mr. Dunscombe’s failure as a senior manager on September 7 was even more glaring because this was the day that Sgt Gallagher came to see him in his office. At the hearing, Mr. Dunscombe testified that she asked him if he knew what was going on with V in A&D. Mr. Dunscombe replied that he did, adding that V was being used as a cleaner. Sgt. Gallagher replied, “okay,” and did not say anything to contradict him. Mr. Dunscombe cited this exchange as an example of a cue that he should have picked up on and looked into further: she probably wanted to say more and that he should have inquired further. [265] Sgt. Gallagher approached one of the most senior managers in the institution and the most senior manager in the building at the time and tried to raise his awareness about V’s treatment. It would have been easy for Sgt. Gallagher to have said nothing about what she has seen in A&D and what her co-workers had told her about V’s preferential treatment. She might have stayed quiet and not risked making waves. Sgt. Gallagher rightly put her responsibilities as a manager before her own self-interest. Unfortunately, her integrity ran aground on Mr. Dunscombe’s indifference, and he brushed her off. She placed her faith in him, and he failed her. Mr. Dunscombe’s complete lack of any meaningful response in this situation was another serious failure as a senior manager. [266] The next day, September 8, DS Frankovich, who had not been in the institution since September 3, directed that V be removed from A&D and that he stop wearing civilian clothes. [267] Mr. Dunscombe testified that at some point on September 8, DS Chillman called and asked him to speak to V and find out how V wanted to treat his absence from work. Mr. Dunscombe went to see V in A&D, and their conversation lasted 3 or 4 minutes. He testified that he did not recall what V was wearing, but it was not the orange clothing issued to inmates. This did not strike him at the time, said Mr. Dunscombe, but when he was returning to his office, he realized that V was not wearing inmate clothing. As he passed by DS Frankovich’s office, he told her that he had just come from A&D and that V was there in - 74 - street clothes. Mr. Dunscombe told her that he was going to his office to call down to A&D, but DS Frankovich said she would deal with it, picked up the phone, and issued very clear directions that V was to be removed from A&D and not return. [268] DS Frankovich testified that when she returned to work on September 8 after the long weekend, she overheard staff talking about a CO being down in A&D in his own clothing. This did not strike her as odd because the person could have been going to court. [269] Later in the day, she testified, DS Marchegiano came to her office and asked her if she had heard anything about an inmate, V, who was a CO, being in A&D and having smokes in the yard. She called down to A&D and spoke to Sgt. Gallagher, asked her if V was in the area and in his own clothing. Sgt. Gallagher did not reply. DS Frankovich told her that if he was in the area, to get him changed and back up to his cell. DS Frankovich did not recall if Mr. Dunscombe was also in her office when she called down to A&D, but that if he said he was, she would not disagree. [270] Once again, it is helpful to consider the context in which Mr. Dunscombe responded to this situation. By September 8, Mr. Dunscombe was aware that there had been numerous breaches of Ministry policy and procedure relating to V’s treatment on September 3 and 4. Still, he had asked no questions and done no follow-up. He had given no general guidance and issued no directions to staff other than to put an end to the egregious breach of security and confidentiality that occurred when V handled paperwork in the Warrants Office. He had toured the facility as the on-call Superintendent on September 7 but did not see V or ask about him. Sgt. Gallagher had attended his office to raise her concerns about V’s treatment but he had done nothing in response. [271] Against this backdrop, Mr. Dunscombe’s evidence is that he went to the A&D area, spoke to V for 3 or 4 minutes, and did not notice that V was wearing his civilian clothes. In my view, coming from a senior manager with nearly 15 years of experience in corrections, this is simply not credible. In the alternative and in any event, it shows a complete lack of situational awareness and a careless disregard for applicable policies, procedures, and guidelines and either implicit or explicit condonation of those breaches of policy. - 75 - [272] Mr. Dunscombe testified that when he realized that V was not wearing inmate clothing, his first reaction was to tell DS Frankovich, whose office he just happened to be passing. His evidence is that he told her that he had just come from A&D and said, “they’ve got V down there in street clothes.” One would have expected Mr. Dunscombe to deal with the situation while in A&D by issuing the appropriate directions. Alternatively, he might have gone to his office and dealt with the situation from there. One would not have expected him to casually mention to another Deputy Superintendent, having no different or greater authority than his, that he had just witnessed an egregious breach of multiple policies, procedures, and guidelines in the handling of a high-profile inmate. Yet Mr. Dunscombe’s evidence is that he simply mentioned what he had seen to DS Frankovich. [273] He also testified that he told DS Frankovich that he would call down to A&D but that DS Frankovich said she would deal with it, picked up her phone, and did so. DS Frankovich testified that DS Marchegiano told her about V in A&D in his civilian clothes. However, she conceded that if Mr. Dunscombe were also in the room, she would not disagree. In any event, Mr. Dunscombe’s own evidence on this point supports the overall finding that, at best, he was indifferent as to V’s custodial care. Mr. Dunscombe’s Interview during the CSOI Investigation [274] I turn now to the allegation that Mr. Dunscombe was deceitful during the investigation by CSOI. At the start of his interview by the CSOI inspectors, Mr. Dunscombe confirmed that he understood he was under a legal duty to provide a complete, full and truthful statement regarding any information he had about the matters that were going to be discussed. At the end of his interview, Mr. Dunscombe was asked if there was any additional information he wanted to provide or any additional information that he felt was important and would like to put on the record. He replied that there was not. He also signed a statement that read in part, “I fully understand that any intentional omissions or false and/or misleading statements to the inspector may subject me to discipline up to and including dismissal.” In other words, and although the interview is not conducted under oath, one is expected to offer up one’s full and complete recollection and tell the investigators everything that one knows. - 76 - Remaining silent, telling only part of one’s story, or waiting for the “right question” to be asked are intentional acts of omission. As Sgt. Core said when she testified about her interview, “you know what they want from you, so give it to them and get out.” Unfortunately for Mr. Dunscombe, the evidence strongly suggests that he did not follow the same principle. [275] An account of Mr. Dunscombe’s interview is detailed above and need not be repeated here. His answers to the questions asked by the CSOI inspectors stood in stark contrast to his evidence when he testified at the hearing, particularly when he was cross-examined. A partial list of the important information that he did not disclose during his interview but testified about at the hearing includes the following: on September 3, when Mr. Dunscombe first met with V, Mr. Dunscombe was the one who raised the possibility of V staying at Maplehurst; after his initial brief meeting with V, he met with V in the Vehicle Compound where Sgt. Core and CO Black were also present; on September 4, Ms. Allain told him that V was in A&D, in the Warrants Office, handling confidential paperwork; he responded by calling Sgt. Haydar and directing that activity to stop; Sgt. Gallagher asked him on September 7 if he knew what was going on with V and he replied that V was being used as a cleaner in A&D; on September 8, DS Frankovich showed him a TAP for V, asked him what it was, and he replied that he wanted nothing to do with it; later that day, he saw V in civilian clothes near A&D, told DS Frankovich about it, and she called A&D to deal with it. These were material omissions. Mr. Dunscombe did not provide the CSOI inspectors with a complete, full and truthful statement about the information he had, and by so doing, he misled them. [276] In addition, and although Mr. Dunscombe denied doing so, I have found that on September 4, he went to A&D and spoke directly to V, where he would have seen that V was wearing civilian clothes. It also would have been apparent to him on that day that the “cleaner” story he had been given for V’s presence in A&D was an implausible explanation for why V was being allowed to remain outside of his segregation cell, wandering around A&D while in civilian clothes. When he was interviewed by the CSOI inspectors, Mr. Dunscombe did not mention that he saw V on September 4, nor did he express any doubts about the “cleaner” explanation, even when pressed. He was given ample opportunity to provide a full and truthful account of all of his interactions with V and everything that he - 77 - knew about the circumstances of V’s incarceration. By failing to do so, Mr. Dunscombe further misled the CSOI inspectors. [277] Mr. Dunscombe argued that he did not make false statements during the investigation by CSOI but that he simply did not recall many of the events that took place during V’s incarceration. He was not interviewed until nearly one year after the events had occurred and the passage of time negatively affected on his memory. He also argued that he was not suspended until after he was interviewed, and until that time, he had no reason to think his conduct during V’s incarceration would be so closely scrutinized, and so no reason to preserve his own careful recollection of those events. [278] Ms. Franzon, DRD Houghton, and Supt. Parisotto considered but rejected these explanations because each person interviewed for the investigation by CSOI agreed that V’s time at Maplehurst was an unusual, memorable event. Almost without exception, staff who interacted with V had a clear, detailed recollection of what had happened. In fact, Mr. Dunscombe was one of the first to be interviewed, and the mere passage of time did not affect the memories of staff who were interviewed months after Mr. Dunscombe. In striking contrast to the preponderance of what the inspectors heard from others, Mr. Dunscombe’s memory was vague and had significant gaps. I agree that this strongly suggests that Mr. Dunscombe failed to provide a full and truthful account and that he misled the inspectors. Based on the evidence, I am persuaded that Mr. Dunscombe did not simply have memory problems and that his memory was selective when he was interviewed by the CSOI investigators. For the same reasons, I am also persuaded that his memory remained selective when he testified at the hearing. [279] The letter of dismissal lists eight false statements that Mr. Dunscombe is alleged to have made during the investigation by CSOI. Six of these statements relate one way or another to Mr. Dunscombe’s professed lack of awareness of what was going on with V during his incarceration at Maplehurst. For the reasons set out above, I find that these statements were false in that they intentionally omitted or sought to downplay Mr. Dunscombe’s knowledge at the time. Of the remaining two statements, one related to Mr. Dunscombe’s alleged failure to file a Conflict of Interest form. This allegation was - 78 - withdrawn during the hearing. The other allegation relates to Mr. Dunscombe’s conversation(s) with DRD Lucier on September 3. It became apparent during the hearing that Mr. Dunscombe’s recollection was, overall, more accurate than DRD Lucier’s, namely because they had two telephone conversations, which aligns with Mr. Dunscombe’s evidence. The fact that Mr. Dunscombe correctly recalled that he had two phone conversations with DRD Lucier that day, evidence that supported his position, corroborates a finding that his memory was not so limited as he asserted. I find that there was sufficient evidence for the Employer to conclude that Mr. Dunscombe made false statements during the investigation by CSOI. Was discharge the appropriate response, and what if any mitigating factors are relevant? [280] Mr. Dunscombe was employed in a position of trust, significant responsibility, and considerable authority. As a senior manager, he was expected to demonstrate leadership and fulfill his duties with integrity and professionalism at all times, with little or no monitoring or supervision. He was expected to set the standard for behaviour at Maplehurst and to follow, and ensure that others complied with Ministry policies, procedures, and guidelines. That is, he should lead by example. It stands to reason that he should be held to a higher standard of conduct and ethical behaviour than those who reported to him. [281] Mr. Dunscombe decided not to follow the recommendation on the Warrant of Committal. He raised the possibility with V that he could be kept at Maplehurst. By doing so, he increased the likelihood that V would be recognized by other inmates and other correctional staff. He set up a situation that opened the door to V's preferential treatment. Mr. Dunscombe’s purported reasons for doing so are belied by his conduct during the balance of V's incarceration because he failed to manifest any genuine concern for V's ongoing treatment or his well-being. This ranged from failing to ensure that a Special Processing Alert was entered in OTIS to not taking any steps to check on V or inquire about his circumstances over the long weekend. - 79 - [282] Mr. Dunscombe's conduct with respect to V in the Vehicle Compound was unacceptable, and he failed to show leadership and be accountable for it. His behaviour conveyed a message to staff at Maplehurst that V should be given preferential treatment. When information about further preferential treatment started to emerge, Mr. Dunscombe failed to act. He accepted that V was being used as a cleaner in A&D, knowing that to be implausible and without asking even the most basic questions. He saw V in his civilian clothes on September 4 but failed to issue any guidance or direction to staff. It was apparent that a high-profile inmate was being treated in a way that breached multiple policies and procedures and did not align with Mr. Dunscombe's own entry on the IIR: "Mr. [V] will be housed in Segregation and kept separate from all other offenders." These multiple and very serious lapses in judgement went to the heart of Mr. Dunscombe's responsibility to ensure the proper care and safety of inmates and many of his other duties and responsibilities as a senior manager. [283] Moreover, these were multiple failures that took place over five days. They were not momentary lapses in judgement or questionable decisions made in the heat of the moment. After the events of September 3, Mr. Dunscombe had ample time to reflect on his conduct and his lack of response to the meeting in the Vehicle Compound. He showed the same lack of judgement on September 4 when he failed to deal with a situation that cried out for the intervention of a senior manager. He then had several days to reflect on whether the “cleaner” ruse merited further investigation and take appropriate action. Instead, he presented and maintained the posture that he had no reason to question what he had been told, not just for the balance of the long weekend but throughout the investigation leading to his dismissal and continuing in this hearing. He brushed off Sgt. Gallagher when she tried to raise her concerns about V’s treatment. There were many occasions when the situation cried out for him to fulfil his duties and responsibilities as a Deputy Superintendent, and he did not. [284] By deciding to admit V to Maplehurst and keep him there, Mr. Dunscombe created a situation that was fraught with risk. The risks included an increased likelihood that V would be recognized, an increased likelihood that V’s health and safety would be jeopardized; and the risk that staff would give him preferential treatment. V’s assignment to a segregation cell would have limited these risks considerably. Mr. Dunscombe materially increased the - 80 - likelihood that V would be given preferential treatment by his own conduct in the Vehicle Compound. He increased the safety and security risk by allowing V to remain in A&D. Having created these conditions, he did nothing to monitor them and allowed them to continue. When it should have been clear to him that V’s presence on A&D in civilian clothes and handling paperwork was seriously problematic, he completely failed to manage the situation. As a senior manager and the on-call Administrator, Mr. Dunscombe’s conduct was unacceptable. [285] Mr. Dunscombe was interviewed as part of the CSOI investigation on August 25, 2016. He was under a legal duty to provide a complete, full, and truthful statement regarding any information he had about the period of V’s incarceration. The answers he gave to many of the questions asked were vague and misleading. He omitted a great deal of relevant information. He was given ample opportunity to tell the inspectors anything else that he felt was important, and he said nothing. There was sufficient evidence for the Employer to conclude that Mr. Dunscombe made false statements during the investigation by CSOI. This amounts to a very serious breach of trust with his Employer. [286] To assess whether the penalty of discharge should be mitigated, the Board examines each case on its own particular facts and surrounding circumstances, and considers the nature and seriousness of the conduct for which the employee has been discharged to assess whether it can be reconciled with ongoing employment. This is the approach set out by the Supreme Court of Canada in McKinley v. B.C. Tel, supra. [287] It is conceded that there is just cause for discipline, so the question is whether there are sufficient mitigating factors to find that dismissal for cause was an excessive response. Mitigating factors referred to in the Board's jurisprudence include the seriousness of the offence which precipitated the discharge; whether it was premeditated; whether it was repetitive or part of a pattern; the employee's disciplinary record; and whether there have been attempts at progressive discipline. The mitigating factors are generally aimed at weighing the prospect of rehabilitation by means of progressive discipline against the risk of recurrence if the employee is reinstated. Insight and remorse are relevant because they tend - 81 - to show that an employee acknowledges and understands what went wrong. Where that is the case, the problematic behaviour is less likely to be repeated. [288] This brings me to an assessment of whether Mr. Dunscombe has frankly acknowledged his misconduct. In some situations where serious misconduct such as a breach of the employer's trust by the employee is involved, remorse and an apology can save the working relationship. Both parties referred to cases where this principle has been considered. The most that can be gleaned from these cases is that they all turn on their particular facts and circumstances. [289] In the allegation meeting, Mr. Dunscombe begrudgingly admitted that some of his conduct was wrong, but he continued to cloak these admissions in excuses and justifications, such as the Warrant of Committal contained a recommendation not an order, and that he thought the Vehicle Compound was secure. Overall, it cannot be said that he fully acknowledged his misconduct because his account of his interactions with V was incomplete and misleading. Nor could one reasonably conclude that he would have allowed a different inmate to sit with COs at a picnic table in the Vehicle Compound and consider that secure. He repeated that he had no reason to disbelieve the “cleaner” explanation and would not acknowledge that failing to question that ruse showed extremely poor judgement or active condonation to allow V to remain in A&D. Most importantly, he insisted that his involvement was “grossly overstated or assumed” and that he was “largely unaware of what transpired during V’s stay at Maplehurst.” The latter point was exposed over the course of the hearing, most notably in the answers that he gave when he was cross-examined, as simply not true. On the former point, Mr. Dunscombe was asked during the hearing if he agreed that many COs expressed the view during their CSOI interviews that senior management knew about and condoned V’s preferential treatment. One would have thought that this would have been a golden opportunity for Mr. Dunscombe to accept that his own conduct towards V had influenced staff and to apologize for this. Instead, his response (“that is their view”) revealed that he still believes that he has very little accountability for the events that led to roughly 25 of his subordinates and co-workers being disciplined. - 82 - [290] As a result, I find that Mr. Dunscombe has shown only limited remorse and has grudgingly acknowledged only partial accountability for the full range of his misconduct. I find that Mr. Dunscombe’s comments do not constitute the type of frank acknowledgement of his misconduct or acceptance of responsibility that is contemplated by the relevant case law. It is extremely difficult to see how the Employer could rebuild its confidence and trust on such an inadequate foundation. [291] Mr. Dunscombe has 16 years of service and a discipline-free work record. These mitigating factors, which are really a framework for answering the larger question of the employee's future prospects of acceptable behaviour, must be considered. In this case, despite Mr. Dunscombe’s moderately high years of service, I find that his guarded and qualified acknowledgement of his misconduct and his grudging and limited acceptance of responsibility are insurmountable barriers to his reinstatement. I am persuaded that his decision to mislead the inspectors by making false statements during the CSOI investigation, followed by his largely unrepentant approach inspires no confidence that he is willing to make the changes necessary to rehabilitate his employment relationship and that this conduct has resulted in an irreparable breach of trust with the Employer. [292] It is clear that the penalty of discharge is the most severe consequence for his misconduct, and there is little doubt that his dismissal had a significant impact on his livelihood. Nevertheless, Mr. Dunscombe is far from retirement age and is employable. Here, Mr. Dunscombe’s misconduct was very serious, because he repeatedly failed to discharge many of his duties and responsibilities as a senior manager over several days. He also made false statements during the investigation by CSOI, which amounts to a very serious breach of trust with his Employer. I am satisfied that the mitigating factors are insufficient in these circumstances to warrant varying the penalty of discharge. As a result, the complaint is dismissed. Summary and Disposition [293] Mr. Dunscombe participated in and condoned the preferential treatment of V while he was incarcerated at Maplehurst from September 3 to 11, 2015. This was contrary to various - 83 - Ministry policies, procedures, and guidelines. He set the stage for V’s preferential treatment soon after V arrived at Maplehurst and then failed to respond and take steps to correct the situation as evidence of more preferential treatment accrued. He also made false statements during the investigation by CSOI into V’s preferential treatment. [294] Mr. Dunscombe’s misconduct both at work and during the CSOI investigation justified the termination of his employment. While there are some mitigating factors, they do not provide a sufficient basis for the Board to exercise its discretion to substitute a lesser penalty. As a result, this complaint is dismissed. Dated at Toronto, Ontario this 4th day of February 2022. “Andrew Tremayne” _______________________________ Andrew Tremayne, Vice-Chair