HomeMy WebLinkAbout2007-2778.Lavallee.11-09-27 DecisionCommission de
Crown Employees
Grievance
UqJOHPHQWGHV
Settlement Board
griefs
GHVHPSOR\pVGHOD
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180 Dundas St. West
Bureau 600
Toronto, Ontario M5G
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GSB#2007-2778, 2008-1078, 2008-1079, 2008-1080, 2008-1089, 2008-2145, 2008-2977
UNION#2007-0135-0025, 2008-0135-0018, 2008-0135-0019, 2008-0135-0020, 2008-0135-0022,
2008-0135-0026, 2008-0135-0027
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Lavallee)
Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services)
Employer
BEFOREM.V. Watters Vice-Chair
FOR THE UNIONEd Holmes
Ryder Wright Blair & Holmes LLP
Barristers & Solicitors
FOR THE Carol Ann Witt
EMPLOYER
Ministry of Government Services
Counsel
HEARINGMarch 19, October 5, October 6, November 16, December 7,
2009; January 5, January 6, January 25, January 26, March 22,
March 23, March 29, March 30, April 13, April 14, May 11,
May 12, June 8, June 9, September 15, 2010;
January 6, January 17, March 21, 2011.
- 2 -
DECISION
[1] The grievor, Mr. Jamie Lavallee, was terminated from his employment as an
unclassified Correctional Officer (CO) at the Windsor Jail by letter of December 1,
2008 signed by Mr. David Marsh, the Superintendent of the facility. The grounds
for the termination are set out therein, as follows:
³<RXHQJDJHGLQXVLQJH[FHVVLve force against inmate P.S.
on May 17, 2008.
2.On May 17, 2008, you submitted an inaccurate occurrence
report.
3.On May 17, 2008, you acted in a manner that violates the
6WDWHPHQWRI(WKLFDO3ULQFLSOHVVSHFLILFDOO\µ7RSHUIRUP
our duties on behalf of the citizens and Government of
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[2] The grievor contested his termination by filing a grievance on December 1,
2008. Five (5) earlier grievances were also filed by the grievor following his
suspension on May 17, 2008, the day of the incident. The bulk of the evidence
presented in this proceeding focused on the termination. It is fair to say that of all
the issues raised in the six (6) grievances before this Board, the appropriateness of
WKHJULHYRU¶VWHUPLQDWLRQLVWKHPRVWLPSRrtant. As a consequence, I will initially
address that issue and will defer consideration of the other matters until later in this
Decision.
- 3 -
[3] This proceeding took twenty-three (23) days to complete over a period of
two (2) years. A total of seventeen (17) witnesses were called to present evidence
for the respective parties. The extent of the evidence, both oral and documentary,
was substantial. Final submissions, including the review of relevant authorities,
took two (2) days to complete. I do not intend to reference all of the evidence and
argument in this Decision. It has all, however, been fully considered and assessed
during the course of my deliberations on the issues raised. I also note that a view
was taken of the Windsor Jail at the outset of this case.
[4] The following witnesses were called to give evidence:
FOR THE EMPLOYER
(i)Mr. Steven McNair, who has served as an Inspector with the
Correctional Investigation and Security Unit (CISU) since March,
2006. He conducted the investigation and prepared the Investigation
Report material to this proceeding. Mr. McNair has worked in the
Ontario Public Service since 1981. A significant portion of his prior
experience was in the field of probation and parole;
(ii)Ms. Cathy Imeson, who has worked as a Registered Nurse at the
Windsor Jail for some thirty-one (31) years. She attended on
inmate P.S. following the incident and documented the observed
injuries;
(iii) Mr. Greg Ireland, who has served as the Provincial Coordinator for
WKH(PSOR\HU¶V8VHRI)RUFH3Uograms since February, 2004. He
was previously the Coordinator in respect of the Cell Extraction
and Institutional Crisis Intervention Teams. Mr. Ireland, in his
current role, prepared the materials used in basic training to teach
new recruits about the appropriate use of force in an institutional
setting. He also rewrote the Defensive Tactics Program used in
both basic training and refresher training. The latter is provided to
- 4 -
COs in the field every twenty-four (24) months. Mr. Ireland,
additionally, administers the Defensive Tactics Instructor Program.
In this regard, he trains, certifies, recertifies and monitors the
associate instructors who provide training at every correctional
institution. These instructors, whose present complement totals
ninety-six (96), all report to Mr. Ireland. For purposes of this case
only, the Union accepts that Mr. Ireland is an expert on the use of
force;
(iv) Mr. William Heggie, who has served as an Acting Operational
Manager (OM) for three (3) years. He previously worked as a CO
for approximately six (6) years. Mr. Heggie worked the 9 a.m. to 5
p.m. shift on May 17, 2008 as the second in charge;
(v)Mr. William Mitchell, who has served as an OM since 2005. Prior
to that, he was a CO for approximately ten (10) years. Mr.
Mitchell was in charge of the 6 a.m. to 6 p.m. shift on the day of
the incident. He assigned the grievor to the Security Hall post for
that day;
(vi)Mr. Paul Kitchen, who has served as an Acting OM since 2007.
Prior to that, he was a CO for approximately fifteen (15) years;
(vii)Ms. Carol Varney, who had served as an Acting OM for a period
of four (4) years as of the date she first gave her evidence. She
started as a CO in June, 1992;
(viii)Mr. Cletus Lewis, who has served as an OM since 2005. He was
an Acting OM between 2003 and 2005, and prior to that was a CO
at the Windsor Jail for approximately ten (10) years;
(ix)Mr. Marc Vallee, who has served as an OM since 1997. Prior to
that, he worked as a CO. Mr. Vallee has held a number of
administrative assignments while an OM. He is currently the
Security Manager; and
(x)Mr. David Marsh who, as previously mentioned, is the
Superintendent of the Windsor Jail. He has served in that capacity
since June, 2006. Over the period of his thirty (30) year career in
Corrections, Mr. Marsh has worked as a CO, an OM, and as a
- 5 -
Deputy Superintendent. As noted, he signed the letter of
termination dated December 1, 2008.
FOR THE UNION
(i)The grievor, Mr. Jamie Lavallee, was hired as an unclassified CO in
February, 2002. He commenced employment at the Windsor Jail
following six (6) weeks of training at the Bell Cairn Campus of the
Correctional Services College in Hamilton, Ontario. Between 1996 and
2000, the grievor took courses at St. Clair College in the Law and
Security and Police Foundation Programs;
(ii)Mr. Robert Bauman, who was an unclassified CO at the Windsor Jail at
the time material to this proceeding. He commenced employment there
in December, 2006. Mr. Bauman was working as the main officer on the
second floor living units at the time of the incident on May 17, 2008;
(iii)Mr. Paul Petroni, who has served as a CO at the Windsor Jail since 1999.
He has acted as a Union Steward for approximately six (6) years and was
the Local President between October, 2007 and October, 2009. Mr.
Petroni and Mr. Dominic BragagliaDFWHGDVWKHJULHYRU¶V8QLRQ
Representatives at an Allegation Meeting held on October 29, 2008. Mr.
Marsh and Mr. Rudy Neufeld, the Deputy Superintendent, attended for
management;
(iv)Mr. Robert McGhee, who has worked as a CO at the Windsor Jail for ten
(10) years. He is part of the classified complement. Mr. McGhee was
working as a second floor assistant on the day of the incident;
(v)Mr. Matthew Martinho, who worked as an unclassified CO at the
Windsor Jail between May and July, 2008. On the day of the incident, he
was assigned to duties on the first floor of the facility;
(vi)Mr. Brian Chauvin, a classified CO who has worked at the Windsor Jail
since 1982. On the day of the incident, he was assigned as the Assist
Officer on the third floor living units. Mr. Chauvin serves as a Union
Representative at the Windsor Jail. He also is the Chairperson of the
Provincial Health and Safety and Systemic Change Committees;
and
- 6 -
(vii)Mr. Eren McArter, who has been employed as a CO at the Windsor Jail
since late 2001. He is part of the classified complement. Mr. McArter
was assigned to the A. and D. Unit on the first floor at the time of the
incident.
[5] Inmate P.S. was not called as a witness to testify in this proceeding. The
witnesses for both parties, however, were in general agreement that this inmate,
who possessed a lengthy record, was a violent and dangerous offender. At the time
of the incident involving the grievor, he was awaiting trial on charges of attempted
murder and assault with a weapon. Evidence was presented by CO Kitchen of two
(2) prior incidents in which inmate P.S. physically assaulted other COs, one being
CO Petroni, at the Windsor Jail. Additionally, his Client Profile discloses that he
had assaulted or threatened staff at the Sarnia Jail in March, 2008. Witnesses
described this inmate as being manipulative, obnoxious, loud, rude, arrogant,
volatile and prone to engage in physical and verbal abuse. He was also considered
to have above average intelligence in comparison to the general inmate population.
I accept the view expressed by several of the witnesses to the effect the COs would
need to be careful, alert and more vigilant when dealing with inmate P.S.
>@7KHOLPLWVSODFHGRQD&2¶VXVHRIforce against an inmate are set out in
Regulation 778 of the Ministry of Correctional Services Act. Section 7 thereof
reads, in part:
7. (1) No employee shall use force against an inmate unless force is
required in order to,
- 7 -
a.enforce discipline and maintain order within the institution;
b.defend the employee or another employee or inmate from assault;
c.control a rebellious or disturbed inmate; or
d.conduct a search.
(2) When an employee uses force against an inmate, the amount of force used
shall be reasonable and not excessive having regard to the nature of the
threat posed by the inmate and all other circumstances of the case.
[7] The above-cited provisions are replicated in the Adult Institutions Policy and
Procedures Manual in the section relating to Security-Use of Force. That section
also contains the following provisions:
³1RHPSOR\HHVKDOOXVHDQ\PHWKRGRI force or restraint techniques
that is in violation of Correctional Services policy.
««««««««««««««««««««««««
Force shall only be used as a defensive or control measure when
absolutely necessary. It is not intended, and shall never be used, as a
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[8] The Standing Orders of the Windsor Jail also reference the limitations on the
use of force established by Regulation 778. Additionally, they provide the
following instruction and guidance to correctional staff:
³:KHQVWDIIDUHDSSRLQWHGWRWKHMinistry of Solicitor General
and Correctional Services as a Correctional Officer or
institution employee, the Criminal Code of Canada designates
them as Peace Officers while on duty. To enable them to
function as Correctional employees, the Criminal Code
empowers them to use force in the execution of their duties.
The law equally holds them criminally responsible for any
excessive or improper use of this authority.
««««««««««««««««««««««««
- 8 -
In the event that any evidence exists that excessive or
improper force on an inmate has been used, the matter will be
dealt with by the Ministry initiating internal discipline or
dismissal proceedings and/or by charges being brought under
the Criminal Code. Staff should be aware that Section 26 of
WKH&ULPLQDO&RGHVWDWHVµ(YHU\RQHZKRLVDXWKRUL]HGE\ODZ
to use force is criminally responsible for any excess thereof
according to the nature and quality of the act that constitutes
WKHH[FHVV¶
If a situation arises where it is necessary for an employee to
use force s/he shall use no more force than is necessary to
UHVWUDLQWKHLQPDWH«««««««««««««««´
[9] The Standing Orders further contain a Statement of Ethical Principles, the
material part of which read:
³$VHPSOR\HHVRIWKH&RUUHFWLRQDO6HUYLFHV'LYLVLRQZHKDYH
a responsibility to protect the public by providing custodial and
community supervision and rehabilitative services to those
referred by the judiciary and other legislative authorities. To
meet this goal requires a commitment to ethical behavior and a
high caliber of professional conduct. Accordingly, we are
committed to the following principles:
To perform our duties on behalf of the citizens and
Government of Ontario with honesty and integrity.
«««««««««««««««««««««
To fulfill our duties in a diligent, competent and
courteous manner.
«««««««««««««««««««««
To respect the civil, legal and human rights of
those under our care and supervision.
«««««««««««««««««««««´
[10] Mr. Ireland testified, in considerable detail, about the instruction the grievor
would have received during his six (6) weeks of Basic Training at Bell Cairn in
- 9 -
2002. He stated that recruits are taught that the criteria set out in Regulation 778
must be present before a CO may use force against an inmate, and that any force
employed must be reasonable, authorized, justified and not excessive.
Additionally, they are instructed that their role is defensive; that a peaceful
resolution must first be sought; and that force is only to be used as a last resort.
Mr. Ireland advised that the Use of Force Management Model is used as a teaching
tool to enable the recruits to better assess how they should respond to a variety of
verbal and physical confrontations with inmates. He also referenced two (2) hand-
outs given to recruits during the 2002 WUDLQLQJ7KHKDQGRXWHQWLWOHGµ6HOI
'HIHQVH¶FRQWDLQVWKHIROORZLQJVWDWHPHQW
³«<RXGRQRWDFWRXWRIKRVWLOLW\ \RXDFWRXWRIGXW\$QG
you offer every opportunity to the offender to stop resisting.
Any act of aggression or hostility is initiated by the offender.
The officer reacts in a defensive manner, guided by legality,
DQGXVLQJRQO\UHDVRQDEOHIRUFHWRFRQWUROWKHRIIHQGHU´
Mr. Ireland noted that these hand-outs were included in a binder that recruits were
entitled to keep if they were successful in the training program.
[11] Mr. Marsh testified that COs are able to access, and print off, Ministry
policies by way of the intranet at the Windsor Jail. He also advised that COs get a
FRS\RIWKHIDFLOLW\¶V6WDQGLng Orders on the commencement of their employment.
A copy of same was issued to the grievor on February 25, 2002. Mr. Marsh stated
that the Standing Orders can also be accessed through computers at the Windsor
- 10 -
Jail. Lastly, he noted that the grievor signed an Employee Acknowledgement and
Declaration Form dated September 17, 2004 to the effect he had read and
familiarized himself with the Ontario Human Rights Code (Preamble), the
Statement of Ethical Principles and the Workplace Discrimination and Harassment
Prevention Operating Policy (WDHP), and that he undertook to conduct his
employment duties in a manner consistent with same.
[12] In his cross-examination, the grievor agreed with the following:
i.Ministry policy and procedures were referenced during his
period of basic training at Bell Cairn and that they were
subsequently accessible through the intranet at the Windsor
Jail;
ii.He was aware of the requirement in the Use of Force Policy
that any force used must be reasonable and not excessive, and
that it must only be used as a defensive or control measure
when absolutely necessary. The grievor accepted the
statement contained therein that force is not intended, and is
never to be used, as a means of punishment. He
acknowledged that physical force is only to be used when
there is an immediate threat to personal safety or the security
of the institution or community, and when there is no
reasonable alternative available to ensure a safe environment.
In this regard, the grievor agreed that any force used must be
proportionate to the threat posed or the harm to be avoided.
He accepted the suggestion that these requirements are
important in the context of an institutional setting, such as the
Windsor Jail; and
iii.He was aware of the Standing Orders of the Windsor Jail
and specifically those relating to the use of force and the
Statement of Ethical Principles. The grievor testified that
the content of these Orders are consistent with what he was
taught during his basic training. In this regard, he advised
- 11 -
that he was familiar with The Use of Force Management
Model and the hand-outs relating self defence mentioned
above. The grievor accepted that only the minimum amount
of force required to control a situation is to be used. He
further agreed that, in the vast majority of instances, voice,
demeanour and command of the situation will do more to
control the inmate and the situation than dependence
physical techniques or methods.
[13] On the evidence presented, I am satisfied that the grievor was fully aware of
the limitations set out in Regulation 778, the Adult Institutions Policy and
Procedures Manual, and the Standing OrdersRIWKH:LQGVRU-DLOUHJDUGLQJD&2¶V
use of force against an inmate. I will consider the area of defensive tactics and
distractionary techniques, and the grievor¶VXQGHUVWDQGLQJRIVDPHODWHULQWKLV
Decision.
[14] By way of an overview, the incident which occurred on May 17, 2008 may
be broken down into three (3) phases or segments. The first phase occurred in
close proximity to the door to the Inmate Visit Room. That door opens into a
somewhat narrow hallway connecting the Security Hallway to the Resource Room
(also referred to as the Quiet Room). The parties generally referred to the area in
question as the bulkhead. The initial interaction occurred shortly after the grievor
asked inmate P.S. and another inmate S.S. to exit the Inmate Visit Room and return
with him to their units. The second phase, involving a physical altercation between
the grievor and inmate P.S., took place part way down the Security Hall towards
the entrance way to the various units. During this exchange, both the grievor and
- 12 -
inmate P.S. were standing. The third phase occurred at a location close to both the
door separating the Security Hall from the Sallyport, adjacent to the Main Entrance
Control area, and the aforementioned bulkhead. By this time, inmate P.S. had been
taken to the ground by several COs. He was, however, offering resistance to being
handcuffed. The grievor acknowledged that, at this juncture, he delivered a
distractive strike to the head area of the inmate while kneeling next to the latter.
[15] The events comprising the incident, which are described in greater detail
below, were captured by two (2) cameras, these being cameras #1 and #7. Camera
#1 was positioned towards the end of the Security Hall and recorded part of the
first phase and substantially all of the second and third phases of the incident.
&DPHUD
- 13 -
and Camera #6 in the Inmate Visit Room. I was not provided with any recordings
from these latter two (2) cameras made on the day of the incident.
[16] I have elected not to provide a lot of detail about the interior design of the
Windsor Jail and the position of the various cameras in order not to compromise
the security of the facility.
[17] The grievor was assigned to work the Security Hall on the 7:00 a.m. to 7:00
p.m. shift on May 17, 2008. One (1) of his responsibilities was to assist with
inmate visits. This entailed escorting inmates back to their living units following
the visit. At approximately 10:29 a.m. the grievor was in the Staff Lunch Room
with CO Davenport on break. At that point, CO McGuire entered the room and
stated that the inmates in the Inmate Visit Room wanted out, as they were banging
on the door. The inmates in that room were inmates P.S. and S.S. The grievor
testified that he has known inmate P.S. since he started at the Windsor Jail in 2002.
It is clear that his assessment of this individual was virtually identical to that of the
other witnesses, as previously described above. In his ZRUGVLQPDWH36ZDV³DQ
inmate you have to ZDWFK\RXUVHOIIRU´
[18] The grievor exited the Staff Lunch Room and proceeded to the front of the
Inmate Visit Room door. Once there, he called to the Control Room on his
portable radio for the door to be opened electronically. Once it opened, inmate
P.S. exited the Inmate Visit Room and started to walk away, at which point the
- 14 -
JULHYRUDVNHGKLPWR³KROGRQIRUDPLQXWH´ The grievor recalled that inmate P.S.
complied with the direction and returned to the area under the bulkhead between
the Security Hall and the Inmate Visit Room door. The grievor then asked inmate
S.S. to exit from the Visit Room. It was his evidence that this inmate replied that
his visit was not finished. In response, the grievor informed inmate S.S. that he
had to come out of the room, as it was required for other visits. The grievor
testified that visits generally last for a minimum of twenty (20) minutes and that
LQPDWH66¶VYLVLWKDGEHHQRQJRLQJIRUDERXWQLQHW\
PLQXWHV
[19] The grievor stated that, during the above exchange with inmate S.S., inmate
36ZDV³YHU\FORVHWRKLP´DQGWKDWLQUHVSHFWRILQPDWH66KHVDLG³&RPHRQ
-DPLHOHWKLPVWD\KHGLGQ¶WDVNWRFRPHRXW´,WZDVWKHJULHYRU¶VHYLGHQFHWKDW
he tried to ignore inmate P.S., and that he repeated the request to the other inmate
to exit from the Inmate Visit Room. The grievor recalled that, at that juncture,
LQPDWH36VDLG³&RPHRQ-DPLHGRQ¶WEHVXFKDKDUGDVV´7KHJULHYRUWKHQ
reiterated that the visits, which had both lasted for ninety (90) minutes, were
finished and that he did not have to further explain himself. He testified that
inmate P.S. then responded by VD\LQJ³)XFNRII-DPLHGRQ¶WEHVXFKDGLFN´7KH
grievor stated that he then cautioned inmate P.S. on his attitude and told him that
KHGLGQRWDSSUHFLDWHWKHODWWHU¶VUHPDUNV He recalled that inmate P.S. was
laughing at him during this exchange. The grievor then proceeded to ask inmate
- 15 -
P.S. if he wanted to receive a misconduct for his behavior. At this point, inmate
S.S. was still in the Inmate Visit Room with the door open.
[20] The grievor testified that inmaWH36ZDV³ERXQFLQJLQDQGRXW´DQG
³URFNLQJEDFNDQGIRUWK´XQGHUWKHEXONKHDGand that the inmate was very close to
both himself and the door to the Inmate Visit Room. It was his evidence that he
used his right hand to direct inmate P.S. towards the Security Hall. The grievor
DVVHUWHGWKDWWKLVDFWLRQZDV³PRUHRIDGLUHFWLRQ´UDWKHUWKDQDSXVK+H
acknowledged that his hand did come into contDFWZLWKWKHOHIWVLGHRIWKHLQPDWH¶V
chest or shoulder area. The grievor descriEHGWKHFRQWDFWDV³DWRXFK´DQGDV³D
VORZPRYHPHQW´+HQRWHGWKDWWKHLQPDte initially appeared to comply with the
direction to move back.
[21] While the sequence of events, as described by the grievor, was not entirely
clear, he appeared to suggest that inmate P.S. continued to laugh at him. The
grievor, as a consequence, again threatened to impose a misconduct. It was his
HYLGHQFHWKDWWKHLQPDWHVWDWHG³:KRGR\RXWKLQN\RXDUHWDONLQJWR´DQG³)XFN
off, do I have to get the piVVRXW´$WWKDWSRLQWWKHgrievor asked him to repeat
ZKDWKHKDGMXVWVDLG7KHJULHYRUUHFDOOHGWKDWLQPDWH36UHSOLHG³<RXKHDUG
PHJRRIGR,KDYHWRJHWWKHSLVVRXW´7KHVe statements referenced an incident in
April, 2008, of which more will be said below, in which another inmate threw a
FXSRIXULQHLQWRWKHJULHYRU¶VIDFH,WZDVWKHVXEVWDQFHRIWKHJULHYRU¶VHYLGHQFH
- 16 -
that inmate P.S. stopped laughing and smiling and that his demeanour became
more serious. He formed the impression that inmate P.S. was becoming more
aggressive, challenging and threatening.
[22] The grievor acknowledged that inmate P.S. did not then have the capability
of throwing urine on him. He stated that he was, nevertheless, concerned by his
comments, their tone, his denial of authority and the fact that a threat was made.
The grievor also took into account his prior encounters with inmate P.S. and the
QDWXUHRIWKHFKDUJHVKHZDVIDFLQJ,WZDVWKHJULHYRU¶VHYLGHQFHWKDWKH
considered the situation to be serious and that he had his guard up even more. The
grievor testified that inmate P.S. continued to rock back and forth near the
bulkhead and that he closed his fist close to his thigh or stomach area. The grievor
stated that he formed the impression the inmate was about to move forward and
assault him.
[23] At this point, the grievor elected to close the door to the Inmate Visit Room,
with inmate S.S. still inside. He stated that he then ordered inmate P.S. to back up
and put his hands on the wall.,WZDVWKHJULHYRU¶VHYLGence that after shutting the
door, he observed that the inmate was not obeying his order. As a consequence, he
took a step forward and attempted to delivHU³DULJKWRSHQEDFNKDQGGLVWUDFWLRQ´
WRLQPDWH36¶VQRVH7KHgrievor testified that this attempted action did not make
contact. He believed that the inmate had backed up in anticipation of the
- 17 -
movement. By way of explanation for his action, the grievor stated that he had no
exit point behind him and, as a consequence, had to create space in front. I note
that this second movement towards inmate P.S. was not referenFHGLQWKHJULHYRU¶V
Occurrence Report.
[24] The grievor testified that he then moved forward and again ordered inmate
P.S. to back up and put his hands on the wall. He said that, instead of complying,
the inmate took a step towards him and swung his left hand at him. The grievor
stated that this was followed by a swing froPWKHLQPDWH¶VULJKWKDQG+HUHFDOOHG
that, as the inmate was stepping towards him, he pushed the inmate on the chest or
shoulder area with two (2) open hands and that the latter responded by stating,
³,¶PJRLQJWRNQRFN\RXUIXFNLQJKHDGRII´ The grievor then proceeded to back
up past the door to the Inmate Visit Room and hit the emergency alarm button on
the wall. He observed that inmate P.S. started to turn and walk away down the
Security Hall in the direction of the living units.
[25] The grievor acknowledged that he was carrying a working radio with him
during this phase of the incident and that he was aware CO Davenport and CO
McGuire were close by in the Staff Lunch Room. In cross-examination, he stated
that he did not have an opportunity to either use the radio to alert an OM about
what was occurring with inmate P.S. or to call out for the above-mentioned COs
- 18 -
for assistance. It was the thrust of his evidence that he was trying to focus on the
inmate and did not want to be distracted by other things.
[26] The grievor testified that after hitting the emergency alarm button, he moved
towards the Security Hall and ordered inmate P.S. to position himself against the
wall. As he came around the bulkhead and into the Security Hall, he observed that
the inmate was not complying with the direction and was, in fact, walking away
from him towards the back of the facility. The grievor testified that he knew he
WKHQKDGWRWDNH³SK\VLFDOFRQWURO´RILQmate P.S. and that he could not let him
continue to walk away on his own. It waVWKHJULHYRU¶VHYLGHQFHWKDWKHZDQWHGWR
prevent the inmate from accessing other parts of the Jail and to eliminate the
potential for his contact with others, both COs and inmates. The grievor stated that
when inmate P.S. saw him enter the Security Hall, he turned around, made a fist
with his right hand, brought his hands XSDQGSRVLWLRQHGKLPVHOI³LQDELWRID
ILJKWLQJVWDQFH´7KHJULHYRUDGYLVHGWKDW he then stepped towards the inmate in
order to grab ahold of him by the arms and shoulders. He indicated that this effort
proved unsuccessful and that he was unable to take control of inmate P.S. The
grievor recalled that the inmate was moving back and forth at this juncture, and
that the inmate swung at him on one (1) or two (2) occasions while doing so. He
further stated that he continued to try to reach the inmate, while at the same time
attempting to protect himself. At or about this point in the incident, CO Davenport
- 19 -
entered the Security Hall from the StaII/XQFK5RRPDQGVKRXWHGRXW³WKDW¶V
HQRXJK´WRLQPDWH362Wher COs then entered the Security Hall in response to
WKHHPHUJHQF\DODUPRU³&RGH%OXH´DVLWwas referred to during the course of the
hearing.
[27] In cross-examination, it was suggested to the grievor that he could simply
have escorted inmate P.S. back to his unit, when he observed the latter walking
away from him in that direction. The grievor, in response, disputed that this was a
viable option given that he and the inmate had just engaged in a physical encounter
during which the inmate had disobeyed orders and been abusive.
[28] COs McGuire and McGhee were the second and third COs to arrive in the
Security Hall while the grievor was physically engaged with inmate P.S. The
former entered the hallway from the Staff Lunch Room, the latter from the
Resource Room. During the physical encounter with the inmate, the grievor got
swung around and fell backwards to the ground. He observed that COs McGhee
and McGuire then had inmate P.S. positioned against the wall near the door to the
Sallyport. As the grievor was getting up, he saw these two (2) COs and the inmate
go to the floor. It was his recollection thDWWKHLQPDWHZDVRQWRSRI&20F*KHH¶V
legs and that the latter was propping himself up on his elbow. The grievor
GHVFULEHG&20F*KHH¶VSRVLWLRQDVRQHRI³GLVDGYDQWDJH´+HQRWHGWKDWDWWKDW
- 20 -
point, only CO McGuire was actively involved in attempting to take control of the
inmate.
[29] Once the grievor got up off the floor, he entered the fray in an effort to assist
in restraining inmate P.S. The grievor testified that, initially, he tried to take hold
RIWKHLQPDWH¶VOHIWDUPLQRUGHUWRSXOOhim off of CO McGhee. He advised that
his attempts proved unsuccessful, as he was unable to secure his grip. The grievor
stated that during this involvement, the radio microphone cord attached to his lapel
started to swing. At this juncture, the grievor also noticed that other COs were
starting to arrive at the scene. In his words, the immediate area around where the
LQFLGHQWZDVRFFXUULQJJRW³DELWFRQJHVWHG´$UHYLHZRIWKHYLGHRWDSHDQGVWLOO
photographs indicates that COs Martinho and Chauvin were the next to arrive.
[30] At about this time, the grievor observed that inmate P.S. was starting to
PRYHRIIRI&20F*KHH¶VOHJ+HWKHQnoticed that the inmate had his left arm
under his chest with his hands positioned nHDUKLVQHFN,WZDVWKHJULHYRU¶V
evidence that inmate P.S. ignored several direct orders from COs McGhee,
Chauvin and himself to stop resisting and give up his arms so that he could be
handcuffed. The grievor then elected WRHPSOR\D³GLVWUDFWLYHVWULNH´+H
GHVFULEHGWKLVDFWLRQDVIROORZV ³,WKHQGHOLYHUHGDQRSHQKDQGULJKWKDQG
GLVWUDFWLYHVWULNHWRWKHWRSRILQPDWH36¶V left side between the side and top of his
KHDGZLWKWKHPHDWRIP\KDQG´7KHJULHYRUIXUWKHUGHVFULEHGWKHHIIRUWDV³D
- 21 -
straight open hand strike to the top of hiVKHDG«´7KHDIRUementioned strike was
made while the grievor was kneeling down. According to the grievor, the strike
was accompanied by an instruction for the inPDWH³WRJLYHXSKLVKDQGV´6KRUWO\
after the strike, the grievor saw that another CO was able to get ahold of the
LQPDWH¶VDUP2QFHWKHarm was pulled from beneath the body, the inmate was
able to be handcuffed. FroPWKHJULHYRU¶VSHUVSHFWLYHthe technique resorted to
had worked, as it distracted the inmate and allowed other COs to apply the
handcuffs.
[31] Once inmate P.S. was handcuffed, he was brought to his feet. At that point,
the grievor stood up and backed away. Acting OM Heggie then gave the grievor
his radio, which had fallen off during the incident, and instructed him to leave the
area. The grievor thereupon left the Security Hall and proceeded to a range on the
second floor of the Windsor Jail. Inmate P.S. was then escorted to a Segregation
cell on the first floor. The grievor returned to the Security Hall within a short
period of time and was present to hear OM Mitchell direct everyone involved in
the incident to prepare an Occurrence Report.
[32] The grievor testified that the objective of his distractive strike during the
first phase of the incident was to distract inmate P.S. so as to create an opportunity
to take control of him, either by turning him to the wall or by taking him to the
floor. As previously noted, this attempt proved unsuccessful. There were no
- 22 -
witnesses, apart from the grievor, who personally observed what occurred in this
initial phase.
[33] The grievor further testified that the distractive strike used during the third
phase of the incident was to distract inmate P.S. long enough to get him off of CO
McGhee and to gain control of his left arm so that it could be handcuffed. He
acknowledged that, at the time, he had no NQRZOHGJHLIWKHLQPDWH¶VRWKHUDUPKDG
been handcuffed or otherwise controlled. The grievor described the distractive
VWULNHDVD³OLJKWSK\VLFDOVWLPXOXV´DQGasserted that it was not meant to be a
KDUPIXOWHFKQLTXH,WZDVWKHJULHYRU¶VHYidence that he had received no training,
either verbal or in written form, to indicate that the action he took while inmate
P.S. was on the floor was prohibited. I note, in this regard, that the grievor
received training in self defence and defensive tactics during his basic training at
Bell Cairn in 2002, and that this was supplemented by refresher training, as
recently as April, 2008.
[34] Acting OM Heggie, OM Mitchell, and COs McGhee, Bauman, Chauvin,
Martinho and McArter were all in the Security Hall when the grievor delivered the
distractive strike to the facial area of inmate P.S. while the latter was on the
ground. The evidence as to their observations, and their assessment as to the
propriety of what occurred, is summarized below.
- 23 -
rd
[35] Acting OM Heggie and OM Mitchell were in the OM Office on the 3 floor
RIWKH:LQGVRU-DLOZKHQWKHDODUP WKH³&RGH%OXH´
VRXQGHG%RWKWKHQ
proceeded to the Security Hall. On the evidence, it appears that Acting OM
Heggie led the way. Once in the Security Hall, Acting OM Heggie observed that
inmate P.S. was on the ground and that several COs were trying to restrain him.
He did not actually see the distractive strike employed by the grievor. Shortly
thereafter, Acting OM Heggie viewed the video record of the entire incident. In
cross-examination, he expressed the opiniRQWKDWWKHRQO\WKLQJ³RXWRIOLQH´ZLWK
Ministry policy was the apparent punch thrown by the grievor in the area of the
bulkhead during the first phase of the incident. Acting OM Heggie stated that
there was nothing about the take down, or the securing and handcuffing of the
inmate while on the floor, that gave him any concern. He testified that he was not
aware of any training document or written policy to the effect that a distractive
strike cannot be used to facilitate the handcuffing of an uncooperative inmate, such
as occurred in this instance. Indeed, Acting OM Heggie indicated that he would be
surprised to learn that it was inappropriate to hit an inmate in the face with an open
hand for purposes of securing them.
[36] OM Mitchell testified that when he got to the Security Hall, he saw several
COs around inmate P.S. who was on the floor. The inmaWH¶VKHDGZDVSRVLWLRQHG
towards the Inmate Visit Room with his feet towards the Staff Lunch Room. The
- 24 -
ULJKWVLGHRIWKHLQPDWH¶VIDFHZDVWRZDUGs the floor and the left side was facing
upwards. OM Mitchell noticed that the COs were trying to handcuff the inmate,
and that the grievor was in a crouched position. It was his evidence that he
observed the grievor make a striking motion with his hand and arm towards the
LQPDWH¶VIDFLDODQGKHDGarea. OM Mitchell did not see the resulting physical
contact, but thought that it would have beHQRQWKHOHIWVLGHJLYHQWKHLQPDWH¶V
position on the floor. He also did not see LIWKHJULHYRU¶VKDQGZDVRSHQRUFORVHG
when he delivered the strike in question. OM Mitchell recalled that inmate P.S.
EHFDPH³PRUHYRFDO´IROORZLQJWKHVWULNHDQG\HOOHGVRPHWKLQJOLNH³WKLVLV
IXFNLQJEXOOVKLW´+HWRRNWKLVDVDUHIOHFWLRQRIWKHLQPDWH¶VDQQR\DQFHDWEHLQJ
struck while held down on the floor. OM Mitchell advised that inmate P.S.
articulated this specific complaint while being escorted to the Segregation Unit
immediately following the incident and again later once he was in the cell.
[37] OM Mitchell viewed the video record shortly after the incident and again
during the course of giving his evidence.He noted that the grievor made the initial
strike during the first phase of the incident and that it was the grievor, and not
inmate P.S., who started the altercation.OM Mitchell also claimed that the grievor
had an opportunity, while the inmate was walking away from the bulkhead towards
the rear of the facility, to provide a verbal direction to the inmate. He emphasized
- 25 -
that, instead, the grievor elected to respond aggressively, to the extent that CO
Davenport tried to hold him back from the inmate.
[38] OM Mitchell agreed that inmate P.S. was resisting being handcuffed. It was
his view, however, that he did not pose a threat to anyone. OM Mitchell testified
that he has never delivered a distractive strike in similar circumstances nor has he
VHHQRWKHUVGRLW)URPKLVSHUVSHFWLYHWKHJULHYRU¶VDFWLRQZDs more of a strike
than a distractive strike, and was more aggressive than defensive in nature. It was
the thrust of his evidence that there was no real need for a distractive strike on the
inmate given that he was being held down by other COs at the time.
[39] CO McGhee testified that he was in the Resource Room at the time the Code
Blue sounded. He was already in the process of going into the hallway, as he had
heard loud voices coming from the area. CO McGhee stated, in this regard, that he
KDGKHDUGWKHZRUGV³GR,KDYHWRJHWWKHSLVVRXW´RQPRUHWKDQRQH
RFFDVLRQ
When CO McGhee arrived in the Security Hall, inmate P.S. and the grievor were
involved in a physical altercation. At that juncture, he put his arms around the
inmate, who at the time was facing away from him near the corner of the Sallyport
door. CO McGhee advised thatDIWHUJUDEELQJLQPDWH36LQ³DEHDUKXJ´KHZDV
able to use his weight to bring him to the ground. Both CO McGhee and the
inmate fell backwards. The latter laQGHGRQ&20F*KHH¶VOHJVDQGUHPDLQHG
WKHUHIRU³PRVWRIWKHLQFLGHQW´2QFHRQthe ground, he recalled that inmate P.S.
- 26 -
ignored orders from several COs, including himself, to give up his hands to be
handcuffed. CO McGhee furtKHUUHFDOOHGWKDWDWRQHSRLQWRQH
RIWKHLQPDWH¶V
wrists were cuffed. He was uncertain whether the inmate was resisting to having
the second hand cuffed or whether it was just stuck and immobile under his body.
CO McGhee testified that during this periRGWKHLQPDWH¶VERG\ZDVWZLWFKLQJRU
jerking back and forth. It was his evidence that CO Chauvin was able to secure the
second hand with the handcuffs almost immediately after the distractive strike
applied by the grievor. CO McGhee expressed the opinion that the aforementioned
strike was of assistance in getting the inmate cuffed.
[40] CO McGhee observed the JULHYRUGHOLYHUDGLVWUDFWLYHVWULNHWRLQPDWH36¶V
face while the latter was on the ground. While he wLWQHVVHGWKHJULHYRU¶VDUP
movement in delivering the strike, he could not say if it was with an open or closed
fist. CO McGhee testified that, in hiVMXGJPHQWWKHJULHYRU¶VUHVRUWWRD
distractionary strike was appropriate, and not excessive, in all of the circumstances.
He stressed that inmate P.S. was being physically uncooperative at the time. In
cross-examination, CO McGhee agreed that a CO cannot use force simply because
they feel like it or are angry. Additionally, he accepted the suggestion that a CO
cannot use as much force as he or she feels like using.
[41] CO Bauman was working as the Main Officer on the second floor when he
first heard the Code Blue. When he arrived in the Security Hall, he observed that a
- 27 -
number of COs were already there, and that several of them were on the ground
struggling with the inmate. CO Bauman teVWLILHGWKDWLQPDWH36¶VOHJVZHUH
³IODLOLQJ´DQGWKDWKHZDVVXEVHTXHQWO\DEOHWRUHVWUDLQWKHLQPDWH¶VULJKWOHJE\
SXWWLQJKLVOHIWIRRWRQWKHIRUPHU¶VWKLJK It was his evidence that a number of
COs, including the grievor, gave a direction to the inmate to put his hands behind
his back so that they could be cuffed. CO Bauman noted that inmate P.S. failed to
comply with the requests. He then observeGWKHJULHYRUJLYHWKHLQPDWH³DIDFLDO
GLVWUDFWLRQ´)ROORZLQJWKHGLVWUDFWLRQWKe inmate gave his hands up to be cuffed.
[42] CO Bauman testified that the grievor was in a crouched position when he
delivered the distractive strike. CO BaumanVWDWHGWKDWKHZDVWKHQVWDQGLQJ³ULJKW
DERYHWKHDOWHUFDWLRQ´,WZDVKLVHYLGHQFHWKDWWKHJULHYRUWKUHZ³DSDOPVWULNH´
ZLWKKLVULJKWKDQGWRZDUGVWKHLQPDWH¶VIDce. In response to a question from this
9LFH&KDLUKHVWDWHGWKDWWKHJULHYRU¶VSDOPZDVSXVKLQJWRZDUGVWKHLQPDWH¶V
IDFH³ILQJHUVSRLQWLQJXS´&2%DXPDQwas positive that an open hand was used.
He did not see the distractive strike actually make contact with the inmate. CO
Bauman presumed that such contact occurred as there was nothing between the
JULHYRU¶VKDQGDQGWKHLQPDWH¶VKHDG
[43] CO Bauman stated that a distractive VWULNHLVXVHGWRUHGLUHFWDQLQPDWH¶V
attention to allow the CO to gain controO)URPKLVSHUVSHFWLYHWKHJULHYRU¶V
action in this instance was appropriate, as it was necessary for purposes of gaining
- 28 -
control over inmate P.S. CO Bauman asserted that such action was in accord with
the training he received at Bell Cairn and in subsequent refresher sessions. More
specifically, he testified that he had received no training, and was not aware of any
written policy, to the effect that a distractive strike was prohibited in a situation
such as occurred on May 17, 2008. Ultimately, CO Bauman was not troubled by
KLVREVHUYDWLRQRIWKHJULHYRU¶VGLVWUDFWLYHstrike, as he believed that the use of
force was then necessary.
[44] CO Chauvin was on his way to the third floor when he heard the Code Blue.
When he arrived at the Security Hall, he observed that an inmate, who he did not
immediately recognize, was on the floor and that several COs were trying to
subdue him. CO Chauvin also witnessed several unsuccessful attempts to handcuff
the inmate. CO Chauvin approached from the rear of the inmate and called out for
someone to give him the handcuffs. He believed that they were provided to him by
CO Bauman. It was his recollection thDWWKHLQPDWH¶VKDQGVDQGDUPVZHUH
beneath his body and that the inmate was struggling to keep them there. After a
few seconds of grappling with the inmate, and with some assistance from another
CO, CO Chauvin was able to attach the handcXIIVWRRQH
RIWKHLQPDWH¶VZULVWV
He was able, after some considerable effort, to subsequently handcuff the other
hand. CO Chauvin testified that when he was securing the second hand, he
UHFDOOHG³DERG\PRWLRQDUHOHDVHRIWHQVLRQRIVXEPLVVLRQ´2QFHWKHKDQGFXIIV
- 29 -
were on, the inmate ceased his resistance, was brought up off the floor and then
escorted to Segregation.
[45] During the above-described episode, CO Chauvin did not witness anyone
strike the inmate. He testified, by way of explanation, that he was then completely
focused on handcuffing the inmate and was not concentrating on the area of the
LQPDWH¶VKHDG&2&KDXYLQDOVRUHFDOOHd that his view of the head area was
obstructed by another CO ZKRZDVVLWWLQJRQWKHLQPDWH¶VXSSHUWRUVR
[46] CO Chauvin testified there was nothing in his training to suggest that a
distractive strike is prohibited when an inmate is down on the ground and other
COs are trying to handcuff him. He stated that, in such a scenario, a CO may use
as much force as is necessary to get care and control of the inmate. In his
judgment, what the grievor did was both reasonable and appropriate. In cross-
examination, CO Chauvin agreed that the extent of force used must be
proportionate to the perceived threat posed by the inmate. He also acknowledged
that force cannot be used simply because the CO involved is angry.
[47] CO Martinho was working in the Segregation Unit on the first floor of the
facility when he heard the Code Blue. On hearing same, he immediately left for
the Security Hall. Once he arrived thHUH&20DUWLQKRREVHUYHG³DORWRI
FRPPRWLRQ´DQGVHYHUDO&2Vtrying to restrain an inmate who was on the ground.
CO Martinho assisted with holding down the LQPDWH¶VULJKWOHJwhile he was being
- 30 -
handcuffed. It was his evidence that he did not witness anyone strike the inmate at
any point during the Code Blue. This was the first Code experienced by CO
Martinho.
[48] CO Martinho stated that a distractive strike must be open-handed and that it
cannot be applied to an inmate with a closed fist. He believed that such a strike
can be applied to whatever part of the body the CO deems most effective for
purposes of gaining a position of advantage. CO Martinho did not recall being told
in training that a distractive strike is prohibited when an inmate is down on the
ground, as in this case, and surrounded by COs. He acknowledged that all of his
training at Bell Cairn in respect of distractionary strikes was in the standing
position. CO Martinho was unable to say whether such a strike was appropriate
here, as the incident was already unfolding by the time of his arrival in the Security
Hall. He agreed that any force applied to the inmate had to be reasonable and
necessary. CO Martinho testified that he believed inmate P.S. did pose a threat to
the safety of the COs involved in the incident. He further acknowledged, however,
that there were enough staff at the scene to ensure that this inmate would
ultimately be restrained.
[49] CO McArter was working in the A. and D. Unit on the first floor at the time
of the Code Blue. After arriving in the Security Hall, he was not involved in
restraining inmate P.S. CO McArter diGKRZHYHUVHH³ZKDWDSSHDUHGWREHD
- 31 -
strike or rapid movement delivered to WKHXSSHUERG\DUHD´RILQPDWH36E\WKH
grievor. He testified that he saw this out of the corner of his eye, and that given the
presence of numerous COs and the inmate, all huddled together, it was hard for
KLPWRGHWHUPLQH³LIWKLVZDVWKHFDVH´&20F$UWHUGLGQRWVHHLIWKHJULHYRU¶V
hand was open or closed, nor did he see whether the movement described actually
connected with the inmate. He did form the impression, however, that the
JULHYRU¶VDFWLRQ³FDOPHGWKHLQPDWHWRWKHSRLQWKHFRXOGEHKDQGFXIIHG´
[50] CO McArter stated that a distractive VWULNHLVLQWHQGHG³WRGLVWUDFWDQLQPDWH
from what they are doing, to stop non-compliance, or as a self defence measure to
GLYHUWDQLQPDWH¶VDWWHQWLRQso that they can be restrainHG´+HLQGLFDWHGWKDWKH
was not aware of anything prohibiting the use of such a strike when an inmate is
down and other COs are trying to restrain him. CO McArter expressed the opinion
that it is within the discretion of a CO as to whether to use a distractive strike to
calm the situation down or to prevent it from escalating. In cross-examination, he
agreed that force cannot be used against an inmate in all circumstances and that,
when used, it must be reasonable and not excessive taking into account the nature
of the incident.
[51] A number of other individuals, who were not present in the Security Hall
during the incident of May 17, 2008, gave evidence relating to their experience in
respect of the use of force.Their evidence is summarized below.
- 32 -
[52] Acting OM Kitchen estimated that he has attended at approximately one
hundred and fifty (150) incidents involving the use of force during his career as a
CO and an Acting OM. He believed that at least ten (10) of these were situations
where an inmate was offering resistance to being handcuffed. Acting OM Kitchen
testified that, in such a situation, his practice is as follows: he first asks the inmate
to provide their hands to be cuffed; if the inmate refuses to comply, he elevates the
direction to an order; if the inmate continues to resist, he threatens them with the
imposition of a misconduct; and after proceeding unsuccessfully through these
stages, he would normally call for assistance and then forcefully restrain the
inmate. It was his experience that COs generally respond to this type of problem
in a similar fashion.
[53] Acting OM Kitchen stated that a distractive strike is used as a means to
distract an inmate so that a technique can be applied. In his experience, such
strikes are seldom used at the Windsor Jail. He has never needed to resort to the
use of a distractive strike. Acting OM Kitchen, during the course of his evidence,
was asked to comment on a situation similar to that which occurred in this case;
namely, where an inmate was taken to the floor by COs; five (5) COs were present,
three (3) of whom were holding the inmate down; and the inmate was resisting a
demand for his hands so that he could be cuffed. He replied that, in those
- 33 -
circumstances, he has never delivered a distractive strike to the head or face of an
inmate nor has be seen any other CO act in that manner.
[54] Acting OM Varney testified that she has attended at more than fifty (50) use
of force incidents while in her current position, and a lot more than that in the
period she was a CO. It was her evidence WKDWVKHDWWHPSWVWRJHWDQLQPDWH¶V
attention through constant verbal direction if they are resisting being handcuffed.
In the event that proves to be ineffective, it is her practice to summon other staff
for assistance either by way of the radio or a Code Blue.
[55] Acting OM Varney stated that distractive strikes are only rarely used by
correctional staff at the Windsor Jail. She indicated that such a technique could be
used if an inmate was out of control and was a threat to staff or other persons. By
way of example, Acting OM Varney referenced an incident which occurred in
June, 2009 involving inmate S.H. The inmate, in that instance, was combative
both with her and another male CO. Inmate S.H. grabbed the other CO by the
throat while struggling with him on the floor and also tried to punch him in the
face. The CO, in response, delivered three (3) distractive strikes to the bicep area
of the inmate in an effort to get the latter to release his grip. The CO also reported
to Acting OM Varney that he had tried to deOLYHUDGLVWUDFWLYHVWULNHWRWKHLQPDWH¶V
face. She did not know whether it was with an open or closed hand. It was Acting
209DUQH\¶VUHFROOHFWLRQWKDWWKH&2Vpresent during the incident were doing
- 34 -
everything they could to gain control of the inmate. Ultimately, she used pepper
spray in an effort to subdue him. The CO directly involved in the altercation with
inmate S.H. had to go to the hospital following the incident for bloodwork and
stitches.
[56] Acting OM Varney was asked to comment on the same situation that was
presented to Acting OM Kitchen. In response, she stated that she has never
delivered a distractive strike to the head or face of an inmate in those
circumstances. Acting OM Varney added that she has never observed any other
CO or Manager do so either. She suggested that other options would be available
to de-escalate this type of incident.
[57] OM Lewis testified that he has handcuffed inmates, and has witnessed other
COs do the same, hundreds of times. He stated that many of these were situations
where the inmates did not want to be handcuffed. OM Lewis advised that, when
confronted by a resistant inmate, his practice is as follows: he initially provides
instruction to the inmate as to what he wants the inmate to do; the instruction may
be repeated several times; the inmate will then be told that they will receive a
misconduct if they fail to comply, and that force may then be used against them;
and if the inmate still does not comply, he instructs the COs present to use
whatever force is necessary to achieve compliance, including taking the inmate to
the ground and, possibly wrestling with him to get the handcuffs on.
- 35 -
[58] OM Lewis stated that a distractive strike is employed when there is a threat
of immediate danger to a CO or other staff. He advised that the technique is used
to create time and opportunity for the CO to pursue some other approach or to call
for help. OM Lewis testified that he has never delivered a distractive strike to the
head or face of an inmate who is being held on the ground by several COs while
offering resistance to being handcuffed.Additionally, he has never seen any other
CO or OM resort to a distractive strike in those circumstances. When asked why
he has not used a distractive strike in a situation similar to the one material to this
FDVH20/HZLVUHSOLHGLWZDVEHFDXVH³LWLVQRWWKHULJKWWKLQJWRGR´+H
suggested that with four (4) to five (5) other COs present, control of the inmate
could be obtained and that the inmate, in these circumstances, would not pose a
threat to anyone. Simply put, OM Lewis asserted that there would be no need for a
distractive strike.
[59] In cross-examination, OM Lewis agreed with the following suggestions
from counsel for the Union: the mere fact that a number of COs are involved in an
incident does not necessarily mean the inmate is under control; an inmate can be
non-compliant and out of control even though a number of COs are present; COs
try to get handcuffs on an inmate as quickly as possible in order to control the
inmate; and handcuffs secured to only one (1) hand can be used as a weapon by the
inmate and COs consequently have to be alert not to let their guard down in that
- 36 -
scenario. Lastly, OM Lewis was confronted with the evidence of other witnesses
for the Employer to the effect there exists no written policy stating that a CO
cannot use a distractive strike while trying to cuff and control an inmate who is on
the ground. I recorded his response DV³1RWKDWLVH[FHVVLYHIRUFH´
[60] OM Vallee testified that he has considerable experience in handcuffing
inmates, including those who do not want to be cuffed. Additionally, he has
observed other COs handcuff inmates. OM Vallee described his approach to an
inmate resistant to being handcuffed, as follows: he repeats the direction given
using tactical commands; he requests compliance and outlines the consequences of
non-compliance, including the issuance of a misconduct; and continued non-
compliance could result in a take-down of the inmate in order to handcuff them.
[61] OM Vallee advised that he has never delivered a distractive strike to the
head of an inmate, as done by the grievor in this instance. He has, however,
witnessed other COs and Managers resort to distractive strikes. By way of
example, he referenced an incident which occurred in June, 1998 in the A. and D.
Vehicle Sallyport between doors #2 and #3. When OM Vallee arrived on the
scene, he observed that an inmate, who was chained to another inmate at the time,
was biting a CO on the thigh or stomach area. He witnessed another CO kick the
inmate twice on the right side in an effort to get the latter to release the bite. When
that proved unsuccessful, the CO struck the inmate three (3) to four (4) times on
- 37 -
the side of his face with the same purpose in mind. Following a lengthy struggle,
the inmate was secured with handcuffs and leg irons.
[62] CO Petroni testified he was never told in training, or at any other time, that a
CO cannot use a distractive strike when an inmate is in the process of being taken
down by other COs. He stated that he is not aware of any policy which would
prohibit a CO from engaging in such action. It was the thrust of his evidence that a
distractive strike may be used, even if the inmate is down, as long as the inmate
continues to struggle and be uncooperative. In cross-examination, CO Petroni
acknowledged that if an inmate is on the ground and is surrounded by several COs,
the advantage would generally be in favour of the COs.He stressed, however, that
even in such a circumstance the inmate may remain uncompliant and the COs may
not necessarily have effective control.
[63] Inspector McNair was informed by the Chief of CISU on May 17, 2008 that
he would be investigating the incident which occurred at the Windsor Jail earlier
that day. Inspector McNair was in contact with Superintendent Marsh on May
thst
19. His first actual attendance at the facility occurred on May 21. Inspector
McNair testified that, thereafter, the investigation was conducted in accordance
with the Investigation Protocol for Investigations under the Ministry of
Correctional Services Act. This specific investigation was either the first or second
use of force investigation that Inspector McNair completed on his own. At the
- 38 -
time he gave his evidence, he had been involved in eight (8) investigations relating
to an allegation of excessive use of force. He had completed four (4) of these on
his own and had assisted with the other four (4). Inspector McNair acknowledged
that he is an employee of the Ministry of Community Safety and Correctional
Services, this being the same Employer ZKRWHUPLQDWHGWKHJULHYRU¶VHPSOR\PHQW
at the Windsor Jail.
[64] Inspector McNair, as part of his investigation, reviewed the Occurrence
Reports of all of the COs and OMs who were present in the Security Hall during
the incident on May 17, 2008. He also reviewed the related documentation
prepared by the attending RN. Inspector McNair subsequently interviewed the
following individuals: COs Davenport, McGhee, McGuire, Chauvin, Martinho,
McArter, Huppert, and Bauman; OM Mitchell and Acting OM Heggie; RN
Imeson; and inmates P.S. and S.S. The grievor was interviewed last. The
interviews were conducted between May 21 and June 9, 2008. All of the
interviews were audio recorded and a written Statement Summary was
subsequently prepared in respect of each interview. Inspector McNair also
reviewed the video recordings captured by cameras #1 and #7 and the series of still
photographs produced therefrom. The Exhibit Register attached to the
Investigation Report provides a more comprehensive outline of the documents
- 39 -
relied on by this Inspector. The aforementioned report was completed on
September 22, 2008.
[65] The relevant findings of Inspector McNair, as contained in the Investigation
Report, were as follows:
³7KHLQYHVWLJDWLRQGHWHUPLQHG that CO Lavallee did not act
in accordance with ministry policies and procedures when
he advanced upon and struck at inmate P.S. with a closed
fist in the security hallway of the WJ on May 17, 2008 at
approximately 1030 hours. This single act was
unreasonable and unnecessary and therefore an excessive
use of force.
&2/DYDOOHH¶VH[SODQDWLRQthat he was inflicting a
µGLVWUDFWLYHVWULNH¶LVQRWEHOLHYDEOHJLYHQWKHUHFRUGHG
images on the security video from camera #1 and
supplementary images from camera #7.
2.The investigation determined that CO Lavallee did not act
in accordance with ministry policies and procedures when
he struck inmate P.S. about the head when the inmate was
on the floor in the security hallway in a semi-prone
position while being subdued and restrained by several
other COs.
&2/DYDOOHH¶VH[SODQDWLRQWKDW his radio cord was tangled
around his arm and he was trying to free the cord from his
arm, that his hand had lost gripRILQPDWH36¶VDUPZKHQ
attempting to take hold in the restraint attempt and that he
ZDVGHOLYHULQJDµGLVWUDFWLYHVWULNH¶ZLWKDQRSHQKDQGWR
LQPDWH36¶VKHDGDUHDLVQRWEHOLHYDEOHJLYHQWKHUHFRUGHG
images on the security video from camera #1 and the
witness account of OM Mitchell.
3.The investigation determined that during the use of force
incident with inmate P.S., CO Lavallee employed
techniques that are not consistent with ministry policy,
- 40 -
procedures and training. The techniques employed by CO
Lavallee are not regarded as defensive in nature but rather
offensive in nature.
«««««««««««««««««««««««
Summary
As Peace Officers, it is critical that COs understand their
legal obligation and duty of care to the inmate and their
need to justify and articulate the use of force by them or the
force used by others in their presence. COs must also
understand and ensure compliance with the spirit and intent
of the law and corresponding policies and procedures that
governs their professional conduct. It is imperative that
COs act within lawful compliance if they are to maintain
the public trust.
«««««««««««««««««««««««
«««««««««««««««««««««««
&2/DYDOOHH¶VDFWLRQVDJDLQVWLQmate P.S. with respect to
this particular incident were unprofessional and not at all
consistent with the legal parameters permitted in instances
where force is justified. CO Lavallee exceeded those legal
and statutory parameters and accordingly his actions
against inmate P.S. can only be described as unnecessary
and unreasonable. That he has chosen to maintain his
original position and not accept responsibility for his poor
judgment in this instance suggests CO Lavallee lacks the
capacity to fully understand the legal obligations and
responsibilities of a CO and Peace Officer.
««««««««««««««««««««««´
(Supporting references omitted)
[66] Inspector McNair, as mentioned, reviewed the video record captured by
cameras #1 and #7, as well as the still photographs produced therefrom, as part of
his investigation. It was his evidence that after so doing, he could not accept the
JULHYRU¶VDFFRXQWRIWKHLQFLGHQW
- 41 -
[67] Inspector McNair rejHFWHGWKHJULHYRU¶VDVVHUWLRQthat he pushed inmate P.S.
backwards in the chest area with an open hand during the initial phase of the
incident. Rather, on the basis of his review, the grievor appeared to make a closed
fist punch towards the inmate¶VIDFH,Q,QVSHFWRU0F1DLU¶VRSLQLRQWKHJULHYRU
acted without provocation. He did not observe inmate P.S. advance towards the
JULHYRU³LQDILJKWLQJVWDQFHZLWKERWKILVWVLQWKHDLU´DVDOOHJHGE\WKHJULHYRU,W
ZDVKLVDVVHVVPHQWWKDWWKHLQPDWH¶VKDQGVZHQWXS³WRIHQGRIIDQXQSURYRNHG
FORVHGILVWVWULNHWRWKHKHDG´$GGLWLRQDlly, Inspector McNair stated that, in his
judgment, the grievor did not appear to have been threatened by the inmate while
they were both in the hallway close to the door to the Inmate Visit Room. It was
the substance of his evidence that the grLHYRU¶VDFWLRQVGXULQJWKLVSKDVHRIWKH
incident, were more offensive than defensive.
[68] Inspector McNair acknowledged that he could not say with any certainty
whether there was any physical contact from the closed fist strike made by the
grievor. He agreed that the strike may notKDYHFRQQHFWHGZLWKLQPDWH36¶VIDFH
if the latter had moved backwards as it was being delivered. I note, at this
juncture, that the Employer does not take the position that the strike resulted in
FRQWDFWZLWKWKHLQPDWH7KH(PSOR\HU¶Vsubmission, rather, is that the act of
swinging at the inmate, by itself, was contrary to Ministry policy and procedures
regardless of whether there was any contact.
- 42 -
> @2Q,QVSHFWRU0F1DLU¶VDQDO\VLV, the grievor was the aggressor in the
Security Hall during the second phase of the incident. He noted that the grievor
elected to initiate a physical altercation with inmate P.S. at a time when the latter
was actually walking away from him towards the rear of the facility. On Inspector
0F1DLU¶VUHYLHZWKHLQPDWH only turned around towards the grievor in order to
defend himself. It was his evidence that at no time, either before or after the
sounding of the alarm, did he see the inmate advance on the grievor in a
threatening or violent manner.
[70] As stated, the grievor acknowledged that he delivered a distractive strike to
WKHOHIWVLGHRIWKHWRSRILQPDWH36¶VKHDGGXULQJWKHILQDOSKDVHRIWKHLQFLGHQW
Inspector McNair rejected thHJULHYRU¶VDVVHUWLRQWKDWWKere was only one (1) strike
and that it was delivered straight towards the inmate with an uncocked arm. From
his review of the video and photographic record, it appeared thatWKHJULHYRU¶VDUP
moved back and forth three (3) times and that his shoulder was elevated, with
elbow cocked, at the time he delivered the strikes. Inspector McNair
acknowledged that he could not actually see from the video and photographs
whether the strikes were delivered with a fist or open hand. It was his impression,
however, that they were likely delivered with a closed fist. It is apparent that
,QVSHFWRU0F1DLUSUHIHUUHGLQPDWH36¶Vaccount of this phase of the incident
with respect to both the number and nature of the strikes.
- 43 -
[71] Superintendent Marsh reviewed the Occurrence Reports of all of the COs
and OMs who were involved or present at the incident, as well as the Audio
Recorded Statement Summaries of their interviews with Inspector McNair.
Additionally, he reviewed the video and photographic evidence relating to the
incident. After so doing, Superintendent Marsh determined that the grievor acted
inappropriately and used excessive force on May 17, 2008.
[72] Superintendent Marsh believed that the grievor tried to punch inmate P.S. in
the facial area when in the bulkhead area during the first phase of their encounter.
He did not view the action taken as a distractive strike. He also did not accept the
JULHYRU¶VFODLPWKDWKHSXVKHGWKHLQPDWHbackwards in the chest area with an open
hand. In his judgment, the video record did not support such a claim.
[73] Superintendent Marsh accepted that LQPDWH36OLNHO\PDGHWKH³GR,KDYH
WRJHWWKHSLVVRXW´FRPPHQW+HQRWHGKRZHYer, that the inmate did not then have
the means to carry out the threat. Superintendent Marsh stated that the use of force
is not justified to respond to a verbal threat which cannot be carried out. He
maintained that the grievor would have known this given his earlier training on the
Use of Force Management Model. It was his evidence that, under such model, the
appropriate response to verbal resistance is a tactical communication in which the
CO involved issues an order for compliance to the inmate. Superintendent Marsh
- 44 -
testified that the situation here in question did not justify resort to a distractive
strike.
[74] Superintendent Marsh stated that if inmate P.S. refused to comply with a
direction to backup and put his hands on the wall, the grievor should then have
reissued his order with the threat of a misconduct if the non-compliance continued.
His further assessment was that, in the circumstances, the grievor had the ability to
back up and hit the alarm button in order to summon other correctional staff to the
area. The Superintendent reiterated that, from what he saw, the situation did not
support the use of force.
[75] Superintendent Marsh observed that after hitting the emergency alarm, the
grievor re-engaged with inmate P.S. in the Security Hall. In his opinion, this was
DQLQDSSURSULDWHUHVSRQVHRQWKHJULHYRU¶VSDUWGXULQJWKLVVHFRQGSKDVHRIWKH
incident.
[76] Lastly, Superintendent Marsh noted that the grievor delivered a strike to the
facial area of inmate P.S. while the latter was on the ground and in the presence of
several other COs. It was the gist of his evidence that no strike of any kind was
called for in view of the fact these other COs had control, or could easily have
obtained control, over the inmate. Superintendent Marsh suggested that Acting
20+HJJLHPXVWKDYHEHHQ³FRQIXVHG´ZKen he testified that he would be
- 45 -
surprised to learn that the distractive strike employed by the grievor, when the
inmate was on the ground, was not permissible.
[77] Mr. Ireland advised that the Employer provides training to COs on
distractionary techniques, rather than distractionary blows. He stated that such
techniques are always open KDQGHGDQGDUHXVHG³WRVHSDUDWHWKHPLQGDQGERG\´
in order to create time for the CO to have the opportunity to disengage, escape, or
to perform some other option, such as a take-down, to establish control. Mr.
Ireland testified that there has to be some physical contact between an inmate and a
CO before the latter can employ a distractionary technique. It was his evidence
that a CO would be entitled to use a distractionary technique if they were being
punched, choked or grabbed by an inmate. He described distractionary techniques
as defensive in nature and stated that an open-handed hit to the face would only be
used as a last resort.
[78] Mr. Ireland further advised that COs are not trained to utilize a striking
technique when an inmate is down on the ground and refuses to provide their
hands to be cuffed. In his judgment, such an action on the part of a CO would be
inconsistent with what is taught in both basic and refresher training. Mr. Ireland
stated that if an inmate on the ground was resisting being handcuffed, and there
were several other COs in the immediate area, the more appropriate response
would be to pin the inmate down and then reVRUWWR³GLIIXVLRQVNLOOVWRWU\WRWDON
- 46 -
WKHLQPDWH¶VKDQGVRXW´,IWKDWSURYHGunsuccessful, the COs could physically pull
WKHLQPDWH¶VDUPVRXWIURPXQGHUWKHLUERG\ Mr. Ireland was adamant that, in
such a circumstance, a CO is not entitled to use a distractive strike or blow for
SXUSRVHVRIVHFXULQJDQLQPDWH¶VKDQGVHe added that there is no recognized or
accepted technique which would permit a CO, or a member of a Cell Extraction
Team or Institutional Crisis Intervention Team, to deliver an open-handed strike to
the facial area of an inmate in this situation. Mr. Ireland acknowledged, in cross-
examination, that there is no specific document which expressly prohibits a CO
from using an open-handed distractionary technique while in the process of trying
to restrain an inmate on the ground.
[79] Mr. Ireland was also provided with the opportunity to review the video
record of the incident. With respect to the initial phase of the incident, he advised
WKDWWKHJULHYRU¶VDFWLRQRIGLUHFWLQJKLVhand towards inmate P.6¶VIDFHZDVQRW³D
FKHFN´+HVWDWHGWKDWDFKHFNLVDWHFKQLque used to stop an attack and to create a
safe distance between the CO and the inmate. In his view, what the grievor did
was not a check because his hand appeared to be closed; it was directed towards
WKHLQPDWH¶VKHDGUDWKHUWKan his chest; and the inmate was some distance away
from the grievor and was moving back, not forwards. Mr. Ireland testified that
what he observed was also not consistent with a distractionary technique, as taught
by the Employer. He reiterated that a distractionary technique is used when a CO
- 47 -
is being assaulted. In this instance, he QRWHGWKDWLQPDWH36¶VKDQGVZHUHDWKLV
side and that he was more WKDQDQDUP¶VOHQJWKDZD\IURPWKHJULHYRU0U,UHODQG
also emphasized that the grievor used a closed, instead of an open, hand. In this
regard, he advised that the Employer does not train COs on techniques involving a
closed hand, as such techniques are intrusive; may result in a disproportionate
injury to the inmate; and may have the unwanted effect of escalating the situation.
[80] Mr. Ireland also observed the following with respect to the initial phase of
the incident:
i.-XVWSULRUWRVHHLQJWKHJULHYRU¶VKDQGFRPHWKURXJKWKHEXONKHDGDUHD
the inmate was smiling with his arms at the side. He noted that the
LQPDWH¶VVWURQJVLGHZDVSRVLWLRQHGIRrward and that, as a consequence,
he would not be able to throw a firm right handed punch. Mr. Ireland
described inmate P.S. as then beLQJLQD³QHXWUDOVWDQFH´DQGDV
³XQSUHSDUHGWRILJKWDWWKDWSRLQW DQG
ii.If inmate P.S. made thH³VKDOO,JHWWKHSLVVRXW´FRPPHQWKHGLGQRW
then have the ability to carry out thHWKUHDW,Q0U,UHODQG¶VMXGJPHQW
the grievor should have responded to any verbal abuse with a threat of a
misconduct and a direction to the inmate to back off to the wall, or move
down to the ground, and should then have closed the door to the Inmate
Visit Room and either radioed for help or activated the emergency alarm.
Mr. Ireland expressed the opinion that the situation, as presented, did not
justify the use of any force. He, neYHUWKHOHVVDJUHHGWKDWWKHJULHYRU¶V
³DQWHQQDVKRXOGKDYHEHHQZD\XS´ given that inmate P.S. was a
problematic inmate and that the latteU¶VDEXVLYHFRPPHQWVZHUHPDGHLQ
a confined area and at a time when he was relatively close to the grievor.
>@0U,UHODQG¶VYLHZVDVWRWKHSUopriety of what occurred during the third
phase of the incident have been set out in paragraph [78] above. He repeated that a
distractive strike in that scenario was not consistent with the training provided to
- 48 -
the grievor, as such strikes are not to be aSSOLHGWRDQLQPDWH¶VKHDGDQGDUHQRWWR
be delivered while the inmate is on the ground.
[82] In cross-examination, Mr. Ireland agreed that COs, generally, have to
exercise their judgment based on their perception of what is occurring in a given
circumstance, and that they are often UHTXLUHGWRPDNH³VSXURIWKHPRPHQW´
decisions. He further accepted the suggestion that COs may sometimes perceive
things incorrectly due to an improper assessment of the situation, and not because
RIDQ\³PDOLFLRXVLQWHQW´ Mr. Ireland agreed that COs may be on a heightened
alert when dealing with inmates, such as P.S., who have previously assaulted COs
or Police Officers. Lastly, it was his evidence that COs may put themselves into
greater jeopardy by either acting too soon or hesitating with their response.
[83] Section 7(3) of Regulation 778 imposes an obligation on a CO who uses
force against an inmate to provide a report to the Superintendent in respect of
same. The provision reads:
Where an employee uses force against an inmate, the employee
shall file a written report with the Superintendent
indicating the nature of the threat posed by the inmate
and all other circumstances of the case.
This requirement is replicated in both the Standing Orders of the Windsor Jail and
in the Adult Institutions Policy and Procedures Manual in the section relating to
Security-Use of Force (November 2007). The Use of Force Procedural Checklist
(February 2007), contained within this same section, states that, at a minimum, the
- 49 -
Occurrence Report must include the following: an account of events leading up to
the use of force; an accurate and detailed description of the incident; the reasons
for employing force; a detailed description of the techniques used; the weapon
used by the offender, if any; injuries received and medical treatment given; and a
list of participants and witnesses to the incident.
[84] The Adult Institutions Policy and Procedures Manual also sets out
requirements relating to the preparation of Occurrence Reports and Offender
Incident Reports. The policy dated December 2007 states, in part:
³32/,&<
&RUUHFWLRQDO6HUYLFHVUHFRJQL]HVWKHLPSRUWDQFHRIµ2FFXUUHQFH
5HSRUWV¶DQGµ2IIHQGHU,QFLGHQW5HSRUWV¶IRUUHFRUGLQJDQG
disseminating information necessary for the preservation of
institutional safety and security, the provision of timely
interventions for inmates experiencing behaviour problems or
personal difficulties, and for the enhancement of institutional
RSHUDWLRQV«««««««««««««««««««««
«««««««««««««««««««««««««
PROCEDURES
Employees are required to prepare accurate and complete
µ2FFXUUHQFH5HSRUWV¶DQGµ2IIHQGHU,QFLGHQW5HSRUWV¶WR
achieve the important objectives in the policy statement.
««««««««««««««««««««««««´
[85] An earlier policy dated October 2003 on the subject of Report Writing notes
the following:
³$OOZULWWHQUHSRUWVPXVWEHWhought of as legal documents.
Anything contained in a report may be required at an
investigation, inquiry, inquest or used as evidence in a court
- 50 -
case. Reports that are provided to the crown may, under the
discovery process, be released WRWKHLQPDWH¶VDWWRUQH\DQG
subsequently could be read by or given to the inmate.
«««««««««««««««««««««««´
The policy lists the following seven (7) essential elements that must be included in
any written report to ensure effective communication of information: when,
where, what, who, how, why, and action taken. It further states that reports should
be clear, correct, concise, complete and courteous.
>@,WLVDSSDUHQWIURPWKHJULHYRU¶Vevidence that, on the basis of his training
and experience, he was familiar with the above mentioned requirements relating to
report writing. I am satisfied that he fully understood the need to be factual,
accurate and comprehensive when preparing a written report about an incident
involving the use of force against an inmate.
>
- 51 -
told inmate P.S. to watch how he spoke to PHDQGWKDW66¶V
visits were none of his business. In a loud voice inmate P.S.
VDLGWRPH³'R,KDYHWRJHWWKHSLVVRXW"´,DVNHGKLPZKDW
KHVDLGDQGUHSHDWHG³<RXKHDUd me goof, do I have to get the
SLVVRXW"´+HZDVPDNLQJUHIHUHnce to my assault by inmate
J.L. last month when he threw urine in my face.
He said this while being about 1-2 feet away from me and I felt
that with his aggressive behaviour and his threats that I needed
to have more personal space between him and I. At this time I
pushed him backwards in the chest area with an open hand, I
moved backwards to the emergency alarm and sounded it. At
this time inmate P.S., took a step towards me and squared off in
DILJKWLQJVWDQFHZLWKERWKKLVILVWVLQWKHDLUDQGVDLG,¶PJRLQJ
to knock your fucking head off. With this threat of assault and
his past assaults on staff I took this threat seriously and I also
put my hands up in defence of any future strikes from P.S. I
took a step towards him and with tactical communication I
ordered him to back up and put his hands on the wall, he did not
comply.
At this time strikes were delivered to each other. Officers
began to arrive and took control of the inmate. During this time
,WULSSHGRQVRPHRQH¶VOHJDQGfell backwards. I got back up
and assisted in restraining the inmate. P.S. refused several
verbal orders from officers McGhee, Bowman, Chauvin as well
as myself for him to put his hands behind his back to be
handcuffed. I was trying to take control of his left arm but
could not get a firm grip on it, as he was not compliant. At this
time I delivered a distractive strike to left side of the top of his
head and ordered him to put his hand behind his back. At this
time he complied with my order. When the other Officers had
control of his arms I stood up and took a step back. This is
when I saw OM 16s Heggie and Mitchell arrive and Mr. Heggie
asked me to leave the area so that they could escort P.S. out of
the area.
««««««««««««««««««««««««´
- 52 -
[88] Inspector McNair expressed thHRSLQLRQWKDWWKHJULHYRU¶V2FFXUUHQFH
Report did not satisfy the requirements pertaining to report writing, as outlined
above. On his reading, it was incomplete and not as detailed and informative as it
should have been in the description of the incident. Inspector McNair testified
that, given what was shown on the video,KHGLGQRWFRQVLGHUWKHJULHYRU¶V
Occurrence Report to be consistent with the facts. The basis for this conclusion
has been previously set out in paragraphs [67], [69] and [70] of this Decision.
[89] Inspector McNair stated it was his belief that the other COs involved in the
incident also failed to provide all of the relevant information in their Occurrence
Reports. Similarly, he asserted that, in their interviews with him, the COs offered
up unsolicited information in an effort to VXSSRUWWKHJULHYRU¶VGHVFULSWLRQRIKLV
encounter with inmate P.S. Inspector McNair formed the impression that a lot of
WKHGHWDLOVWKH\SURYLGHGVHHPHG³UHKearsed or discussed EHIRUHKDQG´+H
attributed all of this to the Code of Silence, which he describeGDVEHLQJ³UDPSDQW´
within every correctional facility across the Province. It was his view that COs and
inmates alike are motivated to conceal or EXU\WKHUHDOIDFWVLQRUGHUWR³SURWHFW
WKHLURZQ´)RUDQXPEHURIUHDVRQV,Qspector McNair believed that this Code
was definitely in play during the course of his investigation into the incident of
May 17, 2008.
- 53 -
[90] Superintendent Marsh also believed that the grievor was not forthcoming
and truthful in terms of what he chose to include in his Occurrence Report. From
his perspective, the grievor provided an untruthful, incomplete and inaccurate
version of the events in order to justify KLVDFWLRQV6XSHULQWHQGHQW0DUVK¶VYLHZV
as to what transpired during the incident are set out in paragraphs [72], [75] and
[76] of this Decision. It was his evidence that, after reviewing the video and
SKRWRJUDSKLFUHFRUGKHVLPSO\GLGQRW³EX\´WKHJULHYRU¶VH[SODQDWLRQ
Superintendent Marsh also considered it material that the grievor never filed an
Addendum to his Occurrence Report notwithstanding that he acknowledged, on
more than one (1) occasion, that the initial report was not entirely accurate. The
following excerpt from the letter of termination spoke to this concern:
³,QUHVSRQVHWRWKHVHFRQGDOOHJDWLRQ\RXWROGWKH&,68
Inspector that you stand by your report. When I asked you
³ZDVLWDFFXUDWH´\RXUHSOLHG³QRWWRWKHIXOOHVWQR´<RXDOVR
VDLG³,GLVFORVHGHYHU\WKLQJWRLQYHVWLJDWRURQ-XQH ´<RXGLG
tell me you had additional informationbut did not submit an
addendum report regarding your actions around the use of force
on inmate P.S. I asked you if you understood what an
addendum report was and you agreed you did. In past
situations you have had no problem sending me e-mails or
telephoning me with other information and when I asked you
why you did not do so in this case you told me several months
had past from the incident. You also testified in the criminal
trial of inmate P.S. that your occurrence report was not
complete and accurate. It would seem to me that you were
either deliberately attempting to mislead the investigators and
the courts and my office or you were attempting to deflect the
truth of what actually did occur. You completed an inaccurate
report too in a deliberate attempt to alter the version of events
- 54 -
and mislead the Ministry. In addition you failed to complete an
addendum report when you recalled pertinent information of the
LQFLGHQW´
Superintendent Marsh acknowledged that neither he, nor any other OM with
delegated authority, ever asked the grievor to provide an Addendum to his
Occurrence Report. He further accepted that all of the Occurrence Reports
submitted by both the COs and OMs were deficient in certain respects.
Superintendent Marsh agreed that the grievor was the only person disciplined with
respect to the content of an Occurrence Report.
> @0U,UHODQG¶VFRQFOXVLRQVDVWRWKHJULHYRU¶VDFWLRQVGXULQJWKHWKUHH
phases of the incident are set forth in paragraphs [79], [80] and [81] of this
Decision. It was the substance of his evidHQFHWKDWWKHJULHYRU¶VGHVFULSWLRQRIWKH
events was inconsistent, in several material respects, with what he observed on the
video record. Mr. Ireland agreed that the presence of elevated stress could
³LQLWLDOO\´DIIHFWD&2¶VDELOLW\WRLPPHGLately recall and record the details of an
incident of this nature.He advised that the ability to recall might be better,
however, within a matter of hours, or a day, after such an encounter.
[92] The grievor testified that prior to writing his Occurrence Report, he went to
WKH20¶VRIILFHWRVHHLIKHFRXOGUHYLHZthe video record. When he arrived there,
he observed that OM Mitchell and CO Chauvin were already in the process of
reviewing the video. The grievor stated that OM Mitchell then made certain
- 55 -
statements which he found to be offensive. By way of example, it was his
HYLGHQFHWKDW200LWFKHOOVDLG³7KLs is where you punched him and where you
SXQFKHGDJDLQ´7KHJULHYRUIXUWKHUWHVWLILHGWKDWDVKHZDVOHDYLQJWKH20¶V
2IILFH200LWFKHOOVWDWHG³,VDZ\RXSXQFh him first, your report had better be a
JRRGRQH´$WWKDWMXQFWXUHWKHJULHYRUwent to the Resource Room to prepare his
Occurrence Report relating to the incident. He commenced the typing of the report
at about 10:54 a.m.
[93] The grievor maintained that he tried to do his best in terms of providing an
accurate description of the events of earlier that morning. He asserted, however,
that several things served to undermine his efforts. First, the grievor noted that he
was unable to view the video footage prior to starting work on the Occurrence
Report and, as a consequence, was unable to review and assess the events, all of
which occurred in a relatively condensed period of time. Second, the grievor
DGYLVHGWKDWKHZDV³VWUHVVHGRXW´DWWKHWLPHDQGdid not have a complete
RSSRUWXQLW\³WRVHWWOHGRZQDQGOHWWKHDGUHQDOLQUXQRXW´IROORZLQJWKH
confrontation with inmate P.S.,QKLVZRUGVKHIHOW³MLWWHU\´DWWKHWLPH7KLUGWKH
grievor testified that he felt he was being ³UXVKHG´E\200itchell and Acting
OM Heggie to finish his Occurrence Report. This was compounded by his fear
that he was about to be suspended and might lose his job. Fourth, the grievor
recalled that his preparation of the Occurrence Report was interrupted by several
- 56 -
COs who entered the Resource Room to inquire about what had occurred earlier or
to use the washroom located there. He also recalled that either OM Mitchell or
Acting OM Heggie came to the room to determine if he was finished writing the
report. It was the substance of the grievor¶VHYLGHQFHWKDWDOORIWKHDERYHVHUYHWR
explain any deficiencies existing in his Occurrence Report. I note that after first
proceeding to the Resource Room, the grievor was relieved of his duties in order to
give him time to complete the report. It is difficult on the evidence to determine
precisely when this occurred.
[94] The grievor was advised by Acting 20+HJJLHWRDWWHQGDWWKH20V¶2IILFH
with a Union Representative once his Occurrence Report was completed. After
printing the report in the A. and D. area, he and CO Chauvin went together to the
20V¶2IILFH7KHJULHYRUtestified that both OM Mitchell and Acting OM Heggie
were there at the time, and that the former took his report and placed it in a file
without looking at it. The grievor believed that the report was submitted at about
12:45 p.m. He recalled that OM Mitchell then advised him that he was being
suspended with pay for that day, but without pay for his upcoming four (4) to five
(5) days. After some input from Acting OM Heggie and CO Chauvin, it was
determined that the suspension for all of of these days would be with pay.
> @,WZDVWKHJULHYRU¶VHYLGHQFHWKDW he asked OM Mitchell why he was being
suspended and that he was told it was because OM Mitchell saw him punch the
- 57 -
inmate first on the video record. The grievor stated that on receiving this response,
KHQRWHGWKDW200LWFKHOOGLGQRWNQRZ³KLVVLGHRIWKHVWRU\´DVKHKDGQRW
actually read the Occurrence Report. The grievor testified that OM Mitchell then
advised him that it did not matter, as the video spoke for itself. OM Mitchell then
directed the grievor to collect his belongings and leave the facility immediately. In
the process of so doing, the grievor went to the Staff Lunch Room and explained to
his colleagues that he was suspended. He informed them that he was going to a
hospital or a clinic to get checked out for a possible injury sustained during the
altercation, and that he had plans to file charges against inmate P.S. The grievor
believed he left the Windsor Jail at approximately 1:00 p.m.
[96] In cross-examination, the grievor agreed that his Occurrence Report was
³QRWFRPSOHWHO\DFFXUDWH´7KLVZDs admitted to on August 20, 2008 during the
subsequent criminal trial of inmate P.S. on charges that he uttered a threat to cause
bodily harm and assaulted a peace officer. These charges were initiated by the
grievor by way of an attendance at the Windsor Police Station later in the day on
May 17, 2008. The transcript of the trial discloses that the grievor gave the
following response to a question concerning the accuracy of his Occurrence
5HSRUW ³,W¶VQRWDKXQGUHGSHUFHQWDFFXUDWe no, forgot to include a couple of
WKLQJV\HV´7KHJULHYRUPDGHDVLPLODr admission to Superintendent Marsh and
Deputy Superintendent R. Neufeld at an Allegation Meeting held on October 29,
- 58 -
2008. He there acknowledged that the report ZDV³QRWDFFXUDWHWRWKHIXOOHVW´7KH
grievor advised both Superintendent Marsh and Deputy Superintendent Neufeld
that he had disclosed everything to Inspector McNair during the interview of June
9, 2008. The grievor initially testified that he did not tell these gentlemen what
ZDV³PLVVLQJ´IURPKLVUHSRUWWKDWKDGbeen subsequently communicated to
Inspector McNair. By way of explanation, he stated, in effect, that they never
asked him to fill in the gaps. At a later point in cross-examination, the grievor
agreed that the management representatives at the Allegation Meeting did ask him
what was missing from his report. He asseUWHGWKDWKHGLGVD\³VRPHWKLQJ´DERXW
what was missing, but was unable to recall what new information he then
disclosed. In a related vein, the grievor further agreed that he did not provide this
information to Superintendent Marsh or Deputy Superintendent Neufeld following
th
the meeting on October 29+HYROXQWHHUHGWKDW³WKH\GLGQ¶WDVNPHHLWKHU´
Lastly, the grievor acknowledged that he did not provide an Addendum to his
original Occurrence Report. He suggested that management personnel did not
want one, as they never requested he provide such a document.
[97] It was the thrust of the grievor¶VHYLGHQFHWKDW200LWFKHOOZDVKRVWLOH
towards him and might have been out to get him. He referenced the following in
support of this assertion:
- 59 -
i.an incident in the Staff Lunch Room in the Fall of 2006
where OM Mitchell allegedly made an ethnic comment
which the grievor did not appreciate and objected to;
ii.an incident towards the end of 2007, in which the grievor
voiced concerns to OM Mitchell that insufficient COs were
involved during the search of a living unit. The grievor
UHFDOOHGWKDW200LWFKHOOUHVSRQGHGE\VD\LQJ³-XVWGR
\RXUMRE´7KHJULHYRULQIRUPed Mr. Dominic Bragaglia, a
Union Representative, of the situation. It was his evidence
WKDWDGD\RUWZR
ODWHU200LWFKHOO³WRUHDVWULS´RII
him in the Staff Lunch Room in front of other COs about his
³UXQQLQJ´WR0U%UDJDJOLDDnd the Union for everything.
The grievor advised that further discussion with OM
Mitchell on the subject proved unproductive;
iii.A disagreement with OM Mitchell in October, 2007 about
how quickly it took him to conduct a count. The grievor
was of the view that OM Mitchell responded to him over the
UDGLRDQGLQWKHODWWHU¶VRIILFHLQDQLQDSSURSULDWHIDVKLRQ
Due to a complaint from a third party, the grievor was asked
by the Security Manager to prepare an Occurrence Report
about the exchanges. The report he prepared was for
6XSHULQWHQGHQW0DUVK¶VDWWHQWLRQ DQG
iv.The grievor noted that he was not called in for shifts, as the
senior casual, in the proper order when OM Mitchell was for
the calls. The grievor testified that OM Mitchell was
unresponsive when he voiced his concerns to him.
> @,WZDVWKHJULHYRU¶VHYLGHQFHWKDW after leaving the Windsor Jail on May 17,
2008, he attended at three (3) medical clinics to check on a possible injury to his
hand stemming from the altercation earlier that day. He advised that all of the
clinics were closed as it was a Saturday. The grievor then elected to go to Hotel-
Dieu Grace Hospital. He there saw both a physician and a social worker in the
- 60 -
+RVSLWDO¶V(PHUJHQF\'HSDUWPHQW,WZDVdetermined that there was no fracture of
the finger after x-rays were taken and evaluated. The grievor was, however, given
a medical note authorizing him to be off work for fourteen (14) days. This was in
response to his complaint of mental stress arising from the incident with inmate
P.S. and an earlier incident on April 13, 2008 during which a cup of urine was
thrown in his face by another inmate.
[99] After leaving the Emergency Department, the grievor proceeded to the
Windsor Police Station. Once there, he provided a statement and asked that
criminal charges be brought against inmate P.S. The two (2) charges referenced
above were subsequently laid. The Crown elected, ultimately, to only proceed on
the charge of uttering a threat to cause bodily harm. This charge was withdrawn at
WKH&URZQ¶VUHTXHVWSDUWZD\WKURXJKWKHtrial held on August 20, 2008. In cross-
examination, the grievor disputed the suggestion that he was trying to portray
himself as the victim when he went to the Hospital to check on possible injuries
and to the Police Station to initiate the charges. Additionally, the grievor stated his
belief that he did not know at the time that inmate P.S. was complaining about
being subjected to an excessive use of force.
[100] As mentioned above, anLQPDWHWKUHZDFXSRIXULQHLQWKHJULHYRU¶VIDFHRQ
April 13, 2008. The grievor attended at Hotel-Dieu Grace Hospital that day for
precautionary bloodwork to test for Hepatitis B, Hepatitis C, and HIV.
- 61 -
Fortunately, the tests all came back negative. It was the grievor¶VHYLGHQFHWKDWWKH
incident itself, and the consequent need for testing, caused him considerable stress
and anxiety. He added that it also caused his wife to be upset. OM Vallee testified
that he contacted the grievor shortly after the incident to see how he was doing. At
the time, OM Vallee was working in Staff Services and was responsible for WSIB
matters and workplace injuries.
[101] Following this incident, the grievor completed a Functional Abilities Form
for Timely Return to Work with the assistance of his physician. This form, dated
April 14, 2008, indicated that no treatment was required and that the grievor could
return to work immediately without any restrictions. From the evidence, it seems
that the grievor returned to work within a day or two after the incident without
missing any scheduled shifts. On his return, he did not request any
accommodation.
[102] RN Imeson and OM Vallee both testified that having urine thrown in a staff
PHPEHU¶VIDFHE\DQLQPDWHLVDVHULRXVFRQcern within the institution, in large part
because inmates may have various significant diseases which could be spread by
such conduct. Acting OM Varney was the subject of a similar incident during the
course of this proceeding. I was informed that the incident led to a WSIB claim
and subsequent lost time from work.
- 62 -
[103] Shortly after the incident on May 17, 2008, RN Imeson was instructed by
Acting OM Heggie to go to the SegregDWLRQ8QLWDQGDVVHVVLQPDWH36¶V
condition. Once there, she looked at and spoke to the inmate through a window in
the cell door. During her visual examination, the inmate was approximately one
foot (1') away from her. RN Imeson believed that she got a full look at his face. It
was her judgment that inmate P.S. did not need the type of medical care that would
require the cell door to be opened.
[104] RN Imeson completed an Accident/Injury Report and a Health Care Record
form almost immediately after her visual examination of inmate P.S. On the
former document, she described the observed LQMXU\DVIROORZV ³/WXSSHUH\HOLG
slight swelling and plum bruising. No visual disturbance. Denies any other injury.
1RWUHDWPHQW´7KLVGHVFULption was essentially repeated in the latter record. RN
,PHVRQGLGQRWGRFXPHQWDQ\LQMXU\WRWKHLQPDWH¶VULJKWFKHHN6KHWHVWLILHGWKDW
she did not observe such an injury. RN Imeson agreed, in cross-examination, that
she could not say if the injury she did observe occurred from the incident, as she
was not present at same. All she could say was that inmate P.S. had such injury
when she saw him in Segregation. RN Imeson advised that she performed a
routine check of the inmate during the afternoon of May 17, 2008. She stated that
he then had no complaints and was not given any medication. The inmate,
similarly, had no complaints when she saw him in Segregation on the following
- 63 -
nd
day. Lastly, I note that a doctor, who saw inmate P.S. on May 22, made the
following notation on the Accident/Injury 5HSRUW ³1RYLVLEOHLQMXU\QRZ'HQLHV
V\PSWRPV´
[105] CO Bauman testified that he could not see any injuries to inmate P.S. when
he assisted with the escort to Segregation. Similarly, Acting OM Heggie did not
observe any injuries when the inmate arrived at Segregation. OM Mitchell also did
not see any injuries prior to when he left that unit. It was his evidence that he was
not actively looking for injuries as his attention was more focused on diffusing the
situation. On the evidence before me, it appears that none of the other COs who
were involved in the incident observed any injuries to inmate P.S. Acting OM
Heggie was unable to recall whether he, or someone else, gave a direction that this
inmate be watched until RN Imeson arrived and photographs were taken.
>@3KRWRJUDSKVRILQPDWH36¶Vface were taken by CO Davenport at 11:26
a.m. on May 17, 2008. He entered the cell to take them. The photographs, which
were entered as an exhibit in this proceeding, show bruisiQJDERYHWKHLQPDWH¶VOHIW
eye and a red mark to the right of his nose.
[107] Superintendent Marsh made thHGHFLVLRQWRWHUPLQDWHWKHJULHYRU¶V
employment at the Windsor Jail. Before doing so, he consulted with the Regional
Director, the Deputy Regional Director and a representative of Staff Relations.
- 64 -
Superintendent Marsh subsequently presented the grievor with the letter of
termination on December 1, 2008.
[108] Superintendent Marsh testified that he considered all of the following in
arriving at the decision to dismiss the grievor:
i.The CISU Investigation Report prepared by Inspector
McNair, together with all the material contained or
referenced therein. This included the Audio-Recorded
Statement Summary of the JULHYRU¶VLQWHUYLHZZLWK
Inspector McNair held on June 9, Superintendent Marsh
noted from his review of the interview that the grievor
³VWRRGE\´KLV2FFXUUHQFH5HSRUWDQGLQVLVWHGWKDWKHKDG
done nothing wrong during the incident. It was
6XSHULQWHQGHQW0DUVK¶VHYidence that he found the
Investigation Report to be complete and accurate in respect
of the excessive use of force against inmate P.S. He noted,
however, that he was not compelled to accept, or act on,
such Report. How he utilized same was a matter for his
discretion;
ii.The video footage of the incident as captured by cameras #1
and #7. His conclusions from this review have been
previously set out in paragraphs [72], [73], [74], [75], and
[76] of this Decision. Simply stated. Superintendent Marsh
determined that the grievor used excessive force against
inmate P.S.;
iii.7KHJULHYRU¶V2FFXUUHQFH5Hport dated May 17, 2008. His
conclusions arising from a review of same are set out in
paragraph [90] of this Decision. As stated therein, he found
the report to be an untruthful, incomplete and inaccurate
account of the relevant events;
iv.The notes from the Allegation Meeting of October 29, 2008
at which he, Deputy Superintendent Neufeld, the grievor and
his Union representatives attended;
- 65 -
v.7KHJULHYRU¶VHPSOR\HHILOHZKLFKFRQWDLQHGWKHIROORZLQJ
prior discipline:
a.A letter of reprimand dated March 3, 2004, issued
EHFDXVHWKHJULHYRUFDOOHGDQRWKHU&2D³UDW´
b.A three (3) day suspension without pay dated March 23,
2006, issued because the grievor made inappropriate
comments to an inmate;
c.A letter of reprimand dated August 9, 2006, issued
because the grievor used inappropriate force against two
(2) inmates. A suspension was initially imposed for
these infractions but the discipline was reduced by way
of a Memorandum of Settlement, following the filing of a
grievance;
d.A letter of reprimand dated September 21, 2006, issued
EHFDXVHRIWKHJULHYRU¶VYLRODWion of the Security Policy;
and
e.A twenty (20) day suspension without pay dated August
- 66 -
appraisals or letters of commendation he may have received.
He did recall that thank-you letters were in the file;
vii.A copy of the Transcript of the proceedings in the Ontario
Court of Justice relating to the charges laid against inmate
P.S. Superintendent Marsh noted from a reading of same
that the grievor said under oath that his Occurrence Report
was not as accurate as it could have been; and
viii.Superintendent Marsh also considered a series of emails
pertaining to the urine incidenW WKHJULHYRU¶VDVVHUWLRQWKDW
he was rushed by OM Mitchell to complete his Occurrence
Report; and the impact upon the grievor that would flow
from a dismissal. With respect to the Occurrence Report, he
noted that the grievor commenced writing it at 10:54 a.m.
and submitted it to OM Mitchell at 12:45 p.m. It was his
belief that this was an adequate period of time in which to
complete a comprehensive and accurate report.
Superintendent Marsh took into account that the grievor had
been relieved from his post to do the report. He also
considered it material that the grievor did not submit an
Addendum. The Superintendent took from this that the
grievor had nothing more to add to the report in any event.
[109] After engaging in the above review, Superintendent Marsh came to the
conclusion that any discipline less than termination would not be corrective in all
of the circumstances and, accordingly, opted for the termination.
[110] The grievor testified that the initial suspension and subsequent termination
caused considerable tension in his family life and placed him in a difficult financial
position. He advised that he took advantage of the Employee Assistance Program
to help him with the problems experienced.,WZDVWKHJULHYRU¶VHYLGHQFHWKDWLI
reinstated, he could have a good working relationship with OM Mitchell and other
- 67 -
management staff. From his perspective, he has owned up to the mistakes he has
made and has learned from them. The grievor asserted that he has always tried to
do the best he can on the job. He emphasized that there had been no disciplinary
incidents on his file between the imposition of the twenty (20) day suspension in
August, 2007 and the incident with inmate P.S. in May, 2008.
[111] As mentioned in paragraph [2] of this Decision, the grievor filed five (5)
grievances prior to the filing of the grievance of December 1, 2008 contesting his
termination. These other grievances may be summarized as follows:
i.A grievance dated June 4, 2008 in which the grievor claimed
that management offered him inadequate support and
assistance following the urine incident of April 13, 2008;
ii.A similar grievance, also dated June 4, 2008, in which the
grievor claimed that management offered him no support
and assistance following the incident with inmate P.S. on
May 17, 2008;
iii.A third grievance dated June 4, 2008 in which the grievor
complained about not being scheduled for any shifts and not
receiving any pay after the date of his last scheduled shift in
May, 2008;
iv.A grievance dated June 12, 2008 in which the grievor
claimed the Employer subjected him to a CISU Investigation
Interview on June 9, 2008 that was harassing, intimidating
and designed to arrive at a pre-arranged conclusion; and
v.A grievance dated September 11, 2008 in which the grievor
claimed that there was unreasonable delay in the completion
of the investigation process.
- 68 -
[112] Before turning to the submissions of the parties, one (1) final matter needs to
be mentioned. During the course of thHJULHYRU¶VHYLGHQFHKHSURYLGHGWZR
images which he generated from a program on his personal computer. It was the
substance of his evidence that the images produced therefrom served to enhance
the video tape relating to the initial phase of the incident. More specifically, the
grievor asserted that they established his hand was opened, and not closed, when
he directed his arm towards inmate P.S. in the bulkhead area.
[113] Counsel for the Employer initially referenced the three (3) phases of the
altercation between the grievor and inmate P.S. During this part of the argument,
she focused extensively on the video record captured by cameras #1 and #7.
>@2QFRXQVHO¶VDQDO\VLVWKHJULHYRUGXULQJWKHLQLWLDOSKDVHGLUHFWHGDULJKW
KDQGSXQFKWRZDUGVWKHLQPDWH¶VIDFHZKHQthey were both standing in the hallway
close to the door to the Inmate Visit Room. It was her submission that the grievor
LQWHQGHGWRFRQWDFWWKHLQPDWH¶VIDFLDOarea. The Employer accepted that the
grievor was being taunted by the inmate and that the latter twice asked the grievor
ZKHWKHUKHKDG³WRJHWWKHSLVVRXW´&Runsel asked, however, that I reject the
JULHYRU¶VHYLGHQFHWKDWKHGLGQRWKDYHVXfficient opportunity to either call out for
assistance from the two (2) COs in the Staff Lunch Room or to use his radio to
summon an OM to the Security Hall. She argued that, in all of the circumstances,
the grievor had the opportunity and the obligation to exhaust such options before
- 69 -
electing to strike out at the inmate. Counsel submitted that the grievor initiated the
physical confrontation in phase one (1) of the encounter by way of an aggressive
SXQFKDWWKHLQPDWH¶VIDFH6KHVWDWHGWKDW,VKRXOGQRWDFFHSWWKH8QLRQ¶VSRVLWLRQ
that the proximity of inmate P.S. to the grievor justified a distractive strike. In her
view, the grievor simply wanted to punish the inmate for his rude and offensive
remarks.
[115] Counsel noted that after pushing the alarm button, the grievor moved
quickly around the corner and into the Security Hall. She stressed that, at that
juncture, the inmate had ³GLVHQJDJHG´DQGwas walking away from the grievor
with his hands at his side. Counsel further observed that the inmate was not
³VTXDUHGRIIWRILJKW´ZKHQWKHJULHYRUILUVt entered the Security Hall. It was her
assessment of the facts that the grievor pursued inmate P.S. down the hallway and
initiated the fight with him. She suggested that the inmate said he would knock the
JULHYRU¶V³IXFNLQJKHDGRII´RQO\DIWHUWKe grievor attempted to throw a punch at
him. Counsel asked me to reject the grieYRU¶VHYLGHQFHWKDWKHRUGHUHGWKHLQPDWH
to move to the wall and that the latter failed to comply. She submitted that, in any
event, if there was non-compliance on the part of the inmate, it likely resulted from
WKHJULHYRU¶VDJJUHVVLYHDnd unprofessional behavior. Counsel further suggested it
was unlikely that inmate P.S. was aboutWR³HPEDUNRQDQXQFRQWUROOHGUDPSDJH
WKURXJKRXWWKH-DLO´6KHREVHUYHGWKDWhe was heading towards the same area
- 70 -
where most of the COs were coming from. Counsel noted that the inmate was not
moving towards an exit, but rather towards the rear of the facility. From her
perspective, at the time the grievor pursued the inmate down the Security Hall,
there existed no real risk of escape.She submitted that the grievor unnecessarily
LQLWLDWHGWKH³ILVWILJKW´GXULQJWKHVHFRQGphase of the encounter, and that it was
simply a continuation of the assaultive behavior he had chosen to use earlier in the
bulkhead.
[116] Counsel for the Employer noted that inmate P.S. was taken to the ground
within a few seconds after the first COs responded to the Code Blue. She noted,
additionally, that he was positioned on his stomach, with his hands beneath his
body, and that his legs and torso were being restrained by the COs. Counsel asked
WKDW,UHMHFWWKHJULHYRU¶VHYLGHQFHWKDWWKHLQPDWH¶VKDQGVZHUH³IODLOLQJ´,WZDV
her submission that his hands were positioned under his body and that, if they were
flailing, they would easily have been caught and secured. Counsel suggested it
was possible that the inmate was unable to comply with any direction to give up
his hands because of his position and the weight being placed on him by the COs
involved in the encounter.
[117] Counsel argued it was clear from the evidence of the grievor, and several of
the attending COs, that the grievor delivered a distractive strike to inmate P.S.
while the latter was laying prone on the floor on his stomach. She argued that he
- 71 -
did so with a straight punch and not a flip with the back of the fingers, or a check
with the heel of the hand. Counsel maintained that, based on her review of the still
SKRWRJUDSKVWKHJULHYRU³SURSHOOHG´KLVarm and hand in a way that was more
consistent with a straight arm punch to thHLQPDWH¶VIDFH6KHDUJXHGWKDWLQDQ\
event, no strike of any kind was necessary in the circumstances and that the strike
employed was an unjustified and excessive use of force. Counsel suggested that
the strike of the inmate while he was on the floor, and in the presence of several
COs, was likely administered to punish him for his earlier taunts of the grievor.
She observed that the use of force as a means to punish an inmate is expressly
SURKLELWHGE\WKH(PSOR\HU¶Vuse of force policies.
>@,WZDVFRXQVHO¶VDVVHssment that in all three (3) phases of the incident, the
grievor exhibited thuggish behavior of the type which might occur in a street or bar
fight. She argued that his actions throughout were not those expected from a
professional CO. In summary, it was the position of the Employer that the
JULHYRU¶VFRQGXFWDPRXQWHGWRDQ³RYHUZKHOPLQJYLRODWLRQ´RILWVXVHRIIRUFH
policies and the Statement of Ethical Principles. Counsel argued that it was
immaterial that inmate P.S. only received minor injuries from the strike.
[119] Counsel acknowledged that two (2) additional camera views were available,
these being from the cameras positioned in the Inmate Visit Room and in the Front
Entry Sallyport. She submitted, however, that the Union failed to adduce any
- 72 -
cogent evidence that these extra views would have been of any assistance. In her
ZRUGVVXFKYLHZVZRXOGQRWKDYH³UHFDVW´WKHHYLGHQFHDYDLlable from cameras #1
and #7.
[120] Counsel observed that COs are responsible for the care, custody and control
of inmates and that the authority to use force against an inmate is narrow and
specific. In this regard, she referenced the limitations on the use of force as set out
in the following: Regulation 778, sections 7.(1) and (2); the Adult Institutions
Policy and Procedures Manual relating to the use of force; the Standing Orders of
the Windsor Jail; the Statement of Ethical Principles; the Use of Force
Management Model; and the manuals used in both basic and refresher training.
Counsel submitted that the grievor, according to his own evidence, was fully aware
of the limitations established by the aforementioned legislation and documents.
She further argued that, from his prior training, he would have known that a
distractive strike is only to be used when a CO is under attack and as a means to
HVFDSHWRVDIHW\2QFRXQVHO¶VYLHZRI the video record, the grievor was the
aggressor and used improper force during each of the three (3) phases of the
incident on May 17, 2008. It was her submission that no amount of force would
have been reasonable, necessary, or authorized as the grievor, in each case, had
other available options which he chose not to exercise.
- 73 -
[121] Counsel relied on the evidence presented by Mr. Ireland to support the
argument that the grievor acted inappropriately on May 17, 2008 during the
altercation with the grievor. More specifically, she referenced the following parts
of his evidence:
i.Mr. Ireland testified that the VWULNHWRZDUGVLQPDWH36¶V
face during the initial phase of the incident had the
appearance of a right hand punch. He also stated that the
attempt to strike the inmate was not legitimate because the
grievor was not being subjected to an assault. He further
stated that strikes by a CO RIDQLQPDWH¶VIDFHDUH
SURKLELWHG,Q0U,UHODQG¶VRSLQLRQLIWKHJULHYRUIHOWDW
risk, he should have resorted to other options prior to the use
of any force. By way of example, he suggested that the
grievor could have radioed for an OM to attend or could
have called out to the COs in the Staff Lunch Room for
assistance;
ii.Mr. Ireland testified that the grievor re-engaged inmate P.S.
needlessly during the second phase of the incident that he,
rather than the inmate, was the aggressor during the
altercation in the Security Hall. Mr. Ireland noted that even
if the grievor ordered the inmate to stand against the wall, he
was not provided with an adequate opportunity to comply;
and
iii.Mr. Ireland testified that a strike to the head and face of
inmate P.S., while he was on the ground, was not
appropriate conduct on the part of the grievor. In his
opinion, there was then no need for any strike as it was
inevitable the inmate would become exhausted and submit
to being handcuffed. Mr. Ireland noted that inmate P.S. was
not assaulting any of the COs during the third phase of the
incident and was only resisting to being handcuffed. From
his perspective, the strike delivered by the grievor was, in
the circumstances, an excessive use of force.
- 74 -
[122] Counsel for the Employer acknowledged that, during cross-examination,
Acting OM Heggie expressed his opinion that WKHVWULNHGHOLYHUHGWRLQPDWH36¶V
head, while he was on the ground, did not constitute an excessive use of force.
Counsel noted that Acting OM Heggie then served on the Institutional Crisis
Intervention Team (ICIT) at the Windsor Jail, and that such Team was trained to
manage inmates in the most violent and dangerous of circumstances. She
VXJJHVWHGWKDW$FWLQJ20+HJJLH¶VLQYROYHment with the ICIT may have coloured
his response to Union counsel. Counsel argued that greater weight should be
accorded to the evidence of OM Mitchell, Acting OM Kitchen, Acting OM
Varney, OM Lewis and OM Vallee. These witnesses, generally, testified that
GLVWUDFWLYHVWULNHVDUH³YHU\VHOGRP´XVHGby staff of the Windsor Jail and/or that
they have never used such a strike in circumstances comparable to the third phase
of the incident of May 17, 2008.
[123] Counsel referenced section 7.(3) of Regulation 778 and the Use of Force
Procedural Checklist. These sources set out what must be included in an
Occurrence Report, at a minimum. Counsel argued that Occurrence Reports
FRQVWLWXWHWKH³RQWKHJURXQGUHFRUG´RIHYHQts at a facility, such as the Windsor
-DLODQGWKDWWKH\UHSUHVHQW³WKHEDFNERQHRIODZHQIRUFHPHQWDQGFRUUHFWLRQV´
6KHQRWHGWKDWWKH\FDQIRUPSDUWRIWKH&URZQ¶VGHIHQFHRI+XPDQ5LJKWVRU
Charter claims commenced by inmates or others.
- 75 -
[124] Counsel commented specifically on WKHFRQWHQWRIWKHJULHYRU¶V2FFXUUHQFH
Report dated May 17, 2008. She noted, inter alia, that it did not reference the
JULHYRU¶VSXQFKWRZDUGVWKHLQPDWH¶Vface. Instead, the Occurrence Report
documented that the grievor pushed the inmate backwards in the chest area with an
RSHQKDQG,WZDVFRXQVHO¶VVXEPLVVLRQWKDWWKHJULHYRU¶VZULWWHQDFFRXQW
manipulated the sequence of events and embellished or misrepresented the facts in
VHYHUDOUHVSHFWVDOOLQD³YHU\VHOIVHUYLQJ´PDQQHU From her perspective, the
Occurrence Report was prepared with the intention to mislead management of the
Windsor Jail as to what actually occurred during the incident. Counsel suggested
that the grievor opted to do so, as he was aware that he had breached his
employment obligations. On her reading, the inaccuracies in the Occurrence
Report were not minor and were incapable of being seen as merely inadvertent.
6KHFRQWUDVWHGWKHJULHYRU¶V2FFXUUHQce Report with the ones prepared by OM
Mitchell and Acting OM Heggie. Counsel submitted that they omitted to include
³LQFRQVHTXHQWLDOWKLQJVRUIDFWVZKLFKcould be easily ascertained from other
PHDQV´VXFKDVDYLHZRIWKHYLGHRUHFRrd to determine who was present in the
Security Hall during the incident. Counsel also noted that the grievor admitted his
report was not completely accurate during his interview with Inspector McNair; in
the course of his testimony before the Ontario Court of Justice; and during the
- 76 -
Allegation meeting with Superintendent Marsh and Deputy Superintendent
Neufeld.
[125] Counsel for the Employer noted that the grievor, after being unable to access
several medical clinics, attended at the Emergency Department of Hotel-Dieu
Grace Hospital immediately on leaving the Windsor Jail on May 17, 2008. While
there, the grievor met with a Social Worker and complained about the stress he was
experiencing from work. After leaving the Hospital, he proceeded directly to the
Windsor Police Station, with his Occurrence Report in hand, for purposes of
initiating charges against inmate P.S. Counsel observed that the grievor did all of
this prior to going home. She submitted that these actions were indicative of a
person who knew he was at fault and was trying to deflect blame and portray
himself as the aggrieved party.
[126] Counsel submitted that the still images, which the grievor produced through
his personal computer, should not be given any weight. On her review, the images
RIWKHJULHYRU¶VKDQGDQGDUPFRPLQJRXW from under the bulkhead were blurred
DQGGLVWRUWHG,QFRXQVHO¶VZRUGVWKHLPDJHVSURGXFHGWXUQHGWKHKDQG³LQWRD
EORE´,ZDVDVNHGWRILQGWKDWWKHH[KLELts were both misleading and self serving
and that it did not represent an enhancement, as claimed by the Union.
>
- 77 -
She noted that Superintendent Marsh reviewed the Investigation Report prepared
by Inspector McNair. It was her submission that the Inspector was unbiased and
that the investigation conducted was sufficiently thorough and complete to permit
the Superintendent to rely on it as part of his decision making. Counsel also
submitted it was appropriate for him to conclude, given the availability of the
relevant Policies and Standing Orders together with the training provided, that the
grievor had the requisite knowledge as to the limitations on the use of force and the
requirements for report writing. Counsel maintained, therefore, that
Superintendent Marsh could properly determine that the grievor breached the Use
of Force Policies and the Statement of Ethical Priniciples, and that his conduct was
blameworthy.
[128] Counsel noted the grievor admitted that his Occurrence Report was not
entirely accurate during his testimony at the criminal trial and then again at the
later Allegation Meeting with Superintendent Marsh and Deputy Superintendent
Neufeld. She considered it material that the grievor never provided an Addendum
and that he made no attempt to clarify, or add to, the initial Occurrence Report.
Counsel submitted that in the circumstances, and after having compared the
Occurrence Report to what was depicted on the video, Superintendent Marsh could
properly conclude that the grievor used excessive force against the inmate during
- 78 -
the incident and that his subsequent report reflected an effort on his part to mislead
management as to what had actually occurred.
[129] Counsel further referenced the fact that Superintendent Marsh reviewed the
JULHYRU¶VSULRUGLVFLSOLQDU\UHFRUGShe submitted it was significant that the
grievor had received discipline previously for two (2) incidents involving
excessive use of force, and that he later received a lengthy twenty (20) day
suspension. Counsel also noted that Superintendent Marsh considered both the
urine incident and the impact that teUPLQDWLRQZRXOGKDYHRQWKHJULHYRU¶V
livelihood, prior to making his decision. She described his decision as
³FRQVLGHUHG´DQGDVRQHWKDWZDVQRWEDsed on erroneous reasons or tainted by bad
faith. Counsel maintained, rather, that 6XSHULQWHQGHQW0DUVK¶VGHFLVLRQUHVXOWHG
from a reasonable apprehension of the facts. It was her submission the
Superintendent could properly FRQFOXGHWKDWWKHJULHYRU¶VSDWWHUQRILQDSSURSULDWH
behavior was not going to change.
[130] It was the position of the Employer that the misconduct referenced in the
letter of termination was proven during the course of this proceeding through clear
and cogent evidence. Counsel asked, accordingly, that the termination be upheld
and the grievance dismissed. In the alternative, she requested that I apply the
doctrine of culminating incident if I was to find that the misconduct called for
some discipline short of discharge. In that event, counsel argued that the
- 79 -
misconduct should be treated as a culminating incident capable of supporting the
GHFLVLRQWRWHUPLQDWHLQYLHZRIWKHQDWXUHDQGH[WHQWRIWKHJULHYRU¶VSULRU
disciplinary record.
[131] Counsel argued the grievor has repeatedly shown that he lacks the judgment
and self discipline required of a CO. She stated that the Windsor Jail should not
continue to be burdened with an employee, like the grievor, who can no longer be
WUXVWHGDQGZKRVLPSO\³GRHVQ¶WJHWLW´&RXQVHODVVHUWHGWKDWWKHJULHYRUZRXOG
not learn from another opportunity to return to work. She acknowledged the
grievor admitted that his Occurrence Report was incomplete and that he delivered
a distractive strike to the facial area of inmate P.S. while the latter was on the
ground. Counsel emphasized, however, that he has not conceded any wrong doing
or expressed any remorse. From her perspective, there is no reason to believe that
a solid employment relationship can be restored. For these reasons, counsel
requested in the further alternative that damages be awarded in lieu of
reinstatement, if I was inclined to set aside the termination.
[132] The Employer provided the following authorities in support of its position:
OPSEU and Ministry of Community Safety and Correctional Services (Beltrano
th
Grievance) (2008), 177 L.A.C. (4) 1 (Petryshen); OPSEU and Ministry of
Community Safety and Correctional Services (Gillis et al.), GSB No. 2003-1520 et
al. (Abramsky); OPSEU and Ministry of Public Safety and Security (Horan
- 80 -
Grievance), [2002] O.G.B.S.A. No. 58, GSB No. 0670/01 (Herlich); OPSEU and
Liquor Control Board of Ontario (Bissonnette), GSB No. 2007-1870 et al. (Gray);
United Food and Commercial Workers, Local 175 v. Better Beef Ltd. (Cox
Grievance), [2007] O.L.A.A. No. 388 (MacDowell); Weyerhaeuser Co. (Drayton
Valley Operations) v. United Steelworkers Local 1-207(Greaves Grievance)
th
) 56 (Power); OPSEU and Ministry of the Environment
(2007), 159 L.A.C. (4
(Orcheson), GSB No. 2722/91 et al. (Gray); West Fraser Electro/Mechanical Ltd.
v. Communications, Energy and Paperworkers Union of Canada, Local 1133 (Hunt
th
Grievance) (2009), 188 L.A.C. (4) 131 (Coleman); OLBEU and Liquor Control
Board of Ontario (Massa), GSB No. 2033/97 et al. (Abramsky); Hendrickson
Spring (Stratford Operations) v. United Steelworkers of America, Local 8773
(Ewaniuk Grievance), [2009] O.L.A.A. No. 34 and, [2009] O.L.A.A. No. 648
(Solomatenko); Board of Governors of Lethbridge Community College and
Alberta Union of Provincial Employees and Sylvia Babin, [2004] 1 S.C.R. 727; De
Havilland Inc. v. National Automobile, Aerospace, Transportation and General
th
Workers Union of Canada, Local 112 (Mayer Grievance) (1999), 83 L.A.C. (4)
157 (Rayner); OPSEU v. Ministry of Education and Training (Lewis Grievance),
[2001] O.G.S.B.A. No. 14 (Abramsky).
[133] With respect to the five (5) other grievances, it was suggested by counsel for
the Employer that the Union led insufficient evidence on same during the course of
- 81 -
this proceeding. Given that the Union had the onus of proof, I was asked to
dismiss these grievances.
[134] Counsel for the Union acknowledged at the outset that of the six (6)
JULHYDQFHVWKHRQHFRQWHVWLQJWKHJULHYRU¶V termination was the most important.
He submitted, however, that there was evidence to support the granting of the other
five (5) grievances. His submissions relating to these latter grievances are set out
below.
[135] As mentioned previously, the grievance of September 11, 2008 claimed that
there was unreasonable delay in the completion of the investigation process.
Counsel for the Union noted that Inspector McNair commenced the investigation
on May 19, 2008 and that the Investigation Report was subsequently issued on
September 22, 2008. The grievor was not terminated until December 1, 2008. On
FRXQVHO¶VDQDO\VLVWKHUHZHUHWZR
VHSDrate periods of delay, these being June
11 to August 29, 2008 and September 22 to December 1, 2008. He emphasized
that within these two (2) periods, the grievor, as an unclassified employee, was not
scheduled any shifts and, as a consequence, did not earn any income. It was the
position of the Union that the grievor was entitled to financial compensation in
respect of the two (2) periods referenced. With respect to the earlier period,
counsel asserted that, for whatever reason, there was no action taken in that time
frame. In terms of the latter period, he argued that compensation should be
- 82 -
awarded from October 1 to December 1, 2008. This, in effect, provided the
Employer with a period of eight (8) days in which to reach a disciplinary decision,
following the receipt of the Investigation 5HSRUW,WZDVWKHWKUXVWRIFRXQVHO¶V
submission that the Employer should have been able to make its decision by
st
October 1 and that the grievor should not bear the financial consequences arising
from the further delay after that date. Counsel requested that I leave it to the
parties, at first instance, to determine the amount of compensation owing, if I was
to allow the grievance. He advised that a favourable ruling with respect to this
grievance would, essentially, capture the claim made in the grievance of June 4,
2008 in which the grievor complained about not being scheduled for any shifts and
not receiving any pay after the date of his last scheduled shift in May, 2008.
[136] The grievance of June 12, 2008, as stated, claimed that the Employer
subjected the grievor to a CISU intervieZWKDWZDV³KDUDVVLQJLQWLPLGDWLQJDQG
designed to arrive at a pre-arranged cRQFOXVLRQ´&RXQVHOIRUWKH8QLRQVXEPLWWHG
that, from the start of the investigation, Inspector McNair demonstrated bias
against the grievor and was out to get him, rather than to gather all of the facts in
an objective and more balanced fashion. Counsel referenced the following aspects
of the investigation in support of his submission:
i.Inspector McNair failed to acquire and save the views which
would have been captured by the cameras positioned in the
Inmate Visit Room and in the Sallyport. He suggested that
the former would have shown the grievor and inmate P.S.
- 83 -
outside of the Inmate Visit Room door, although possibly
just from the waist down. Counsel stated that the video
would have indicated how close they were to each other, and
ZRXOGKDYHVXSSRUWHGWKHJULHYRU¶VFRQFHUQWKDWWKHLQPDWH
was too close to him during the initial phase of the incident.
Counsel further suggested that the latter camera in the
Sallyport would have provided another angle, through the
glass window, of the take down of the inmate by the COs.
He was uncertain if this camera would have captured the
JULHYRU¶VDUPPRYHPHQWLQ the bulkhead area or the
subsequent phase of the incident when inmate P.S. was on
the ground. Counsel argued, however, that Inspector
0F1DLU¶VIDLOXUHWRJDWKHUand review these sources of
potential evidence amounted to a serious deficiency in the
investigative process;
ii.Inspector McNair did not speak with, or interview, the
Control Room Officer, and did not seek a report from him.
He advised that such Officer had a number of screens
available to him by which he could monitor and observe
activities elsewhere in the Windsor Jail. Counsel referenced
DFRQIOLFWLQWKH,QVSHFWRU¶VHYLGHQFHUHODWLQJWRZKHWKHUKH
went into the Control Room. On the initial day of his
evidence, Inspector McNair stated that he did not go into the
room. On the second day of his testimony, he recalled that
he had, in fact, gone into the Control Room. Counsel
indicated that he found it difficult to believe the Inspector
would not recall that fact when he was first testifying;
iii.Inspector McNair never checked to determine if inmate P.S.
had been left alone in the Segregation Unit prior to RN
,PHVRQ¶VDUULYDOWKHUH&RXQVel argued that this was a
significant omission given that no witness could recall
seeing any injury to the inmate before he went into
segregation. He asserted that Inspector McNair should have
made this inquiry in order to determine if the injuries
documented by RN Imeson were self-inflicted, and not the
result of the earlier altercation. Counsel submitted that the
Inspector chose not to take this step, as he was out to get the
grievor;
- 84 -
iv.,QVSHFWRU0F1DLUWULHGWR³SOD\XSWKH&RGHRI6LOHQFH´
Counsel for the Union observed that COs Davenport,
McGhee, Bauman, McArter, in addition to the grievor, all
noted in their Occurrence Reports that a strike was delivered
to the inmate. From his perspective, this established that
these COs were not trying to hide anything;
v.Counsel argued that Inspector McNair deliberately misled,
or lied to, the grievor during the interview of June 9, 2008.
He referenced that the Inspector put to the grievor that
witnesses said he was observed striking inmate P.S. with a
closed fist. Counsel submitted this was false, as the only
ZLWQHVVZKRVDZWKHJULHYRU¶Vhand at the material time was
CO Bauman and he said it was an open hand. Additionally,
counsel noted that the Inspector put to the grievor that no
one recalled him giving a directive to the inmate to give up
his hands and comply. Counsel, again, stated this was
inaccurate, as CO McArter had advised he heard such a
directive being given at least once. Counsel indicated that
Inspector McNair was aware of this at the time he
interviewed the grievor. He maintained that, in the
circumstances, the Inspector had abused his role and
position. Counsel further relied on a statement he attributed
to Inspector McNair in re-examination in which the latter
VDLGWKDWKHKDG³SOD\HG´WKHJULHYRU
[137] For all of the above reasons, counsel submitted that all of Inspector
0F1DLU¶VHYLGHQFHZDVWDLQWHG+HUHLWHUDWed that the Inspector set out to mislead
and lie to the grievor, instead of acting as a ³QHXWUDOJDWKHUHURIWKHIDFWV´&RXQVHO
claimed that this misconduct entitled the grievor to general damages in the amount
of $1,500.00.
[138] As indicated, the grievor also filed two (2) grievances on June 4, 2008 in
which he claimed that management had offered him inadequate support and
- 85 -
assistance following the urine incident of April 13, 2008, and no support and
assistance after the incident with inmate P.S. on May 17, 2008. Counsel noted that
only OM Vallee contacted the grievor after the first incident, and that Inspector
th
McNair was the only Employer representative to speak with him after May 17.
Given these circumstances, I was asked to issue a declaration to the effect that the
Employer should have directed someone, for reasons of health and safety, to
follow up with the grievor to see if he needed support and/or assistance following
both incidents.
[139] Counsel for the Union submitted that the Employer did not rely on the
doctrine of culminating incident when LWGHFLGHGWRWHUPLQDWHWKHJULHYRU¶V
employment. Rather, the Employer opted for termination strictly on the basis of
what occurred during the incident of May 17, 2008. Counsel argued that the
Employer should not be permitted to enlarge the grounds for termination beyond
those it relied on at the time. On his reading, the letter of termination of December
1, 2008 did not disclose any intent to found the termination upon the occurrence of
a culminating incident.
[140] Counsel argued that the Employer was required to prove its case by way of
clear, strong and cogent evidence. He stated this was so, in part, because of the
significant impact of a finding that the grievor used excessive force against inmate
P.S. Pursuant to section 7(4) of the Crown Employees Collective Bargaining Act,
- 86 -
such a finding would preclude this Vice-Chairperson from reinstating the grievor
to a position that involves direct responsibility for, or that provides an opportunity
for contact with, inmates in a correctional facility. Counsel advised that this would
result even if I determined that the grieYRU¶VFRQGXFWRQO\PHULWHGDVKRUWSHULRGRI
suspension. He, therefore, cautioned that a very careful analysis had to be
undertaken before deciding that the grievor used excessive force on May 17, 2008.
Simply put, such a finding would effectivel\SXWDQHQGWRWKHJULHYRU¶VFDUHHUDVD
CO.
[141] Counsel for the Union maintained that every person involved in the incident,
both from management and the bargaining unit, failed to provide a full and
complete Occurrence Report. By way of examples, he cited the following: OM
Mitchell and Acting OM Heggie did not identify any of the other COs involved in
the attempt to restrain inmate P.S. on the floor; and Acting OM Heggie failed to
report the contact between his knee and the inmate. Counsel observed that OM
0LWFKHOO¶V2FFXUUHQFH5HSRUWZDVGHILFLHQWeven though it was prepared after he
viewed the video record. It was his submission that the grievor should not be
punished, when no one else involved in the incident was disciplined for a deficient
report. In this regard, he argued that the deficiencies did not result from any
³PDOLFLRXVLQWHQW´EXWUDWKHUUHIOHFWHGa not uncommon tendency to forget some of
WKHWKLQJVZKLFKRFFXU³DWWKHKHDWRIWKHPRPHQW´&RXQVHODOVRUHIHUHQFHGWKH
- 87 -
Occurrence Reports prepared in respect of the June, 2009 incident involving
Acting OM Varney. He submitted that the Reports submitted in that instance were
³ZKROO\GHILFLHQW´DQGQRWHGWKDWWKH&2 who was directed to file an Addendum
still failed to explain the nature of the distractive strike employed on that occasion.
Counsel observed that, similarly, no discipline was imposed in that situation in
respect of any deficiency in the Occurrence Reports filed.
[142] In summary, on this aspect of the case, it was the position of the Union that
LWZRXOGQRWEHIDLUWR³VLQJOHWKHJULHYRURXW´JLYHQWKDWDQXPEHURIRWKHU
Occurrence Reports were deficient but did not result in the imposition of any
discipline. Counsel argued that, in cases of this nature, there exists a real need for
equality of treatment. In the alternative,KHVXEPLWWHGWKDWHYHQLIWKHJULHYRU¶V
Occurrence Report was deficient, that fact would not be sufficient to support a
termination. He suggested that, at most, it would merit only a one (1) day
suspension.
[143] Counsel for the Union next addressed the three (3) phases of the incident.
With respect to the initial phase, he repeatHGWKDWWKHUHZDVRQO\³SDUWLDO´HYLGHQFH
RIWKHHYHQWVJLYHQ,QVSHFWRU0F1DLU¶VIDilure to access the camera in the Inmate
Visit Room. As mentioned above, counsel stated that the video from such camera,
if accessed, might have shown how close inmate P.S. was to the grievor while they
ZHUHERWKLQWKH³FORVHGVSDFH´QHDUWKHopened door to the Inmate Visit Room.
- 88 -
+HUHIHUHQFHG0U,UHODQG¶s agreement that such evidence would have been
helpful, particularly in relation to his explanation of proximics. Essentially, it was
0U,UHODQG¶VHYLGHQFHWKDWLIWKHLQPDte was within touching distance of the
grievor, then he was too close. Counsel referenced the JULHYRU¶VEHOLHIWKDWLQPDWH
P.S. was, in fact, too close to him and 0U,UHODQG¶VDFNQRZOHGJHPHQWWKDWWKHUHLV
DVXEMHFWLYHFRPSRQHQWWRD&2¶VDVVHVVPHQW when confronted with this type of
situation. Counsel also observed that there were gaps in the video, as certain parts
of the initial phase were not captured by the two (2) cameras used by Inspector
McNair. He also referenFHGWKH(PSOR\HU¶VGHFLVLRQQRWWRFDOOLQPDWHV36DQG
S.S. and the Control Officer as witnesses. It was the thrust of his submission that
these individuals might have been able to shed more light on what actually
occurred during the initial part of the incident.
[144] Counsel noted that, at the material time, inmate P.S. was moving back and
forth in the confined area under the bulkhead near the Inmate Visit Room door. He
emphasized that the inmate was then making comments which the grievor judged
WREHWKUHDWHQLQJ&RXQVHOKLJKOLJKWHG0U,UHODQG¶VHYLGHQFHWKDWYHUEDOWDXQWV
have to be taken seriously, and that negative consequences may result from some
hesitation, on the part of a CO, to respond. Counsel also viewed it as significant
WKDWWKHJULHYRUNQHZDERXWLQPDWH36¶V background, including the fact he had
previously assaulted other COs and Police Officers.From his perspective, the
- 89 -
JULHYRU¶VNQRZOHGJHWKDWWKLVLQPDWHZDVD³QDVW\JX\´KDd to be factored in to
how he should respond to the potentially volaWLOHVLWXDWLRQ2QFRXQVHO¶VDQDO\VLV
DQDGGLWLRQDOIDFWRUIRUWKHJULHYRU¶VFRQVLGeration at the time was that the Security
+DOOFRQVWLWXWHG³DQHQWUDQFHZD\´LQto many areas of the Windsor Jail.
[145] Counsel submitted that the grievor did not have the benefit of hindsight at
the time, as did those who viewed the video record during the course of the
hearing. Instead, he had to respond in real time as the events were occurring.
Counsel observed that these events all transpired within a very condensed period.
+HWKHQUHIHUHQFHGWKHJULHYRU¶VHYLGHQFHWKat inmate P.S. failed to comply with
several directions to move up against the wall, and that the former then decided to
XVH³PRYHPHQW´DVDGLVWUDFWLRQDU\WHFKQLque to move him back. Counsel noted
that the hand movement utilized was with WKH³EDFNRIWKHSDOPIRUZDUG´+H
argued that the computer images generated by the grievor supported that this was
the type of movement made. In his view, the images did not depict the throwing of
a closed fisted punch or swing. Counsel added that if I was unable to determine
the position of the hand and the nature of the movement used, then the Employer
would have failed to satisfy its onus. In this regard, he refeUHQFHG&2&KDXYLQ¶V
evidence that a back of the hand strike was a permitted distractionary technique.
[146] Counsel submitted that what occurred in the bulkhead area, during the initial
phase of the incident, did not amount to a violation of the Statement of Ethical
- 90 -
Principles. He stated that, if wrong on thisSRLQWWKHJULHYRU¶VDFWLRQVWKHUHGLGQRW
warrant termination but, rather, only some nominal form of discipline.
[147] Counsel stated that after pushing the emergency alarm, the grievor moved
back into the Security Hall and observed that inmate P.S. was walking in the other
direction towards the open end of the hall. He referenced the evidence of a number
of witnesses who expressed the opinion that inmates cannot be permitted to move
freely in that area, as it creates a security concern. Counsel specifically focused on
the evidence of COs Petroni and Bauman. The former testified that he would not
allow such movement, and would attempt ³DWDNHGRZQ´WRVWRSLW7KHODWWHU
testified that he would not wait for others to arrive on the scene, and that he would
want to take control of the inmate in that situation. Counsel further observed that
CO Bauman stated he did not view the putting of hands on an inmate, in order to
secure control, as the equivalent of starting a fight. In this respect, counsel argued
that the grievor did precisely what two (2) other COs testified they would have
done in similar circumstances. He, lastly, noted that the grievor was not involved
in the actual take down of inmate P.S. to the ground.
[148] Counsel for the Union submitted, inter alia, that the grieYRU¶VDFWLRQVGXULQJ
the second phase of the incident did not warrant termination or, for that matter, any
significant discipline.
- 91 -
[149] Counsel next addressed the third phase of the incident, which he described
DVWKH³RSHQKDQGVWULNHRQWKHIORRU´$WWKHRXWVHWKHUHIHUHQFHG$FWLQJ20
.LWFKHQ¶VHYLGHQFHWKDWDGLVWUDFWLYHVWULke is a permitted technique when an
inmate is offering resistance to a CO while they are trying to perform some action
in respect of that inmate, such as an attempt to handcuff. Counsel then noted, from
WKH(PSOR\HU¶VRSHQLQJDUJXPHQWWKDWWKere was no dispute inmate P.S. was
resisting providing his hands to be cuffed.He further noted the evidence of several
witnesses that the inmate refused to provide his arms for this purpose, despite
being directed to do so a number of times.
[150] Counsel referred to the following evidence on this aspect of the case:
i.0U,UHODQG¶VHYLGHQFHWKDWQRWUDLQLQJLVSURYLGHGWR&2V
on the application of restraints to an inmate who is on the
ground, and that there are no documents which expressly
preclude the use of a distraction technique in those
circumstances;
ii.$FWLQJ20+HJJLH¶VHYLGHQFHWKDWWKHWHFKQLTXHRID
distractionary strike is well known by staff working at the
Windsor Jail. Counsel observed that such statement was
supported by the fact a number of COs referred to a
distractive strike in the body of their Occurrence Reports.
Acting OM Heggie also testified that he had no concern with
WKHJULHYRU¶VDFWLRQVDQGZRXOGEHVXUSULVHGWREHWROGWKDW
such actions were not permitted. In his view, it was
permissible to hit an inmate in the face with a hand in the
circumstances then existing in the Security Hall;
iii.&2%DXPDQ¶VHYLGHQFHWKDWLQmate P.S. was told a number
of times to give up his hands to be cuffed, but refused. CO
Bauman also testified that he observed the grievor deliver an
- 92 -
³RSHQKDQGSDOPVWULNH´DQGthat such action facilitated the
handcuffing of the inmate. Counsel argued that, in respect
of the former point, CO%DXPDQ¶VHYLGHQFHZDV
unchallenged. He also noted that this witness was
VXSSRUWLYHRIWKHJULHYRU¶VYHrsion of events, despite being
WKH&2ZKRZDVHDUOLHU³SUDQNHG´E\WKHJULHYRU,WZDV
&2%DXPDQ¶VHYLGHQFHWKDWKHZDVQRWWURXEOHGE\ZKDWKH
saw the grievor do. Indeed, he aVVHUWHGLWZDV³DSHUIHFWILW´
and was entirely appropriate.He added that he would be
surprised to learn that a CO cannot employ a distractive
strike in the circumstances existing on May 17, 2008;
iv.The evidence of COs Petroni, McGhee and McArter, who all
testified that what the grievor did was reasonable in the
circumstances and would be surprised to be told otherwise;
v.The evidence of CO Martinho who asserted that the
distractive strike used by the grievor was not excessive, and
that the grievor used the least force necessary. CO Martinho
had no recall of ever being informed that a CO could not use
a distractive strike in the circumstances confronting the
grievor. Counsel observed that this CO was relatively new
to the position and had just recently been trained; and
vi.The evidence of CO Chauvin who testified that the same
techniques are available to a CO regardless of whether an
inmate is standing or on the ground.
[151] Counsel for the Union also commented on the evidence presented by the
(PSOR\HU¶VZLWQHVV,WZDVhis assessment that none of the witnesses said they had
never used a distractive strike in similar circumstances because it was not
permitted. Rather, they had never been faced with the need to resort to the
technique. Counsel submitted that the grievor was being held to a different
standard. Ultimately, it was his submission that it would be unjust to conclude that
- 93 -
WKHJULHYRU¶VDFWLRQVGXULQJWKHILQDOphase of the incident were wrong,
inappropriate or excessive.To the contrary, he argued that what the grievor did
³ILWWKHFLUFXPVWDQFHV´DQGZDVLQVWUXPHQWDOLQDFKLHYLQJFRPSOLDQFH
[152] Counsel acknowledged that a finding of excessive force can be made in the
absence of any resulting injury. He, nevertheless, referenced the following facts
ZLWKUHVSHFWWRWKHLQPDWH¶VLQMXULHV QRwitness could say that the injuries were
FDXVHGE\WKHJULHYRU¶VDFWLRQV WKHJULHYRU was not involved in the take down;
other COs were in physical contact with inmate P.S. both during the take down and
while on the floor; none of the COs present when the inmate got up from the floor,
or when he was taken to the Segregation Unit, observed any injuries to his facial
area; RN Imeson only observed an injury toWKHLQPDWH¶VOHIWH\HDQGGLGQRW
observe a red mark on the right cheek, when she visually examined him from
outside the cell; and the photographs subsequently taken by CO Davenport did
record the aforementioned red mark. Counsel also referenced the evidence of RN
Imeson to the effect that it is not uncommon for inmates to injure themselves and
then try to blame correctional staff for same. He suggested that this is what likely
occurred in this instance.
[153] For all of the above reasons, counsel asked that the grievance be allowed and
that the grievor be reinstated with full back pay and benefits. It was his submission
that reinstatement should necessarily follow a finding that the grievor did not use
- 94 -
excessive force against inmate P.S. He maintained that this was not the type of
exceptional case where damages should be awarded in lieu of reinstatement.
,QGHHGIURPFRXQVHO¶VSHUVSHFWLYHVXFK alternate remedy would be completely
unjust.
[154] The Union provided the following authorities in support of its position:
OPSEU and Ministry of Correctional Services (Sammy et al.), GSB No. 0224/01
(Harris); Re United Steelworkers of America and Aerocide Dispensers Ltd. (1965),
15 L.A.C. 416 (Laskin); Re A.B.F. Freight Systems (B.C.) Ltd. and General Truck
'ULYHUVDQG+HOSHUV¶8QLRQ/RFDO (1987), 28 L.A.C. (3d) 246 (McPhillips);
OPSEU and Ministry of the Solicitor General and Correctional Services (Rate),
GSB No. 706/96 (McKechnie); OPSEU and Ministry of Correctional Services
(Rankin), GSB No. 1508/88 (Verity); Re Tenant Hotline and Peters and Gittens
(1983), 10 L.A.C. (3d) 130 (MacDowell); ThyssenKrupp Elevator (Canada) Ltd.,
[2006] O.L.R.D. No. 1818 (Jesin).
[155] The following submissions were made on behalf of the Employer in reply:
i.&RXQVHOUHIHUHQFHGWKH8QLRQ¶Vreliance on the fact that CO
training does not expressly prohibit the use of force against
an inmate who is not complying with a direction to give up
their hands to be cuffed. In response, she stressed that
Regulation 778 is very specific to the effect that no
employee shall use force against an inmate unless required
for one of the four (4) enumerated purposes. Counsel
submitted that these purposes do not contemplate the use of
force against an inmate who is offering resistance to being
handcuffed;
- 95 -
ii.The appropriateness of the JULHYRU¶VDFWLRQVPXVWEH
measured against an objective standard. Counsel argued that
VXFKDFWLRQVFDQQRWEHHYDOXDWHGVROHO\RQWKHJULHYRU¶V
subjective belief he was being threatened and was compelled
to act as he did. With respect to the initial phase of the
incident, she asserted that there was no reason for the
grievor to attempt a strike at inmate P.S. while they were
under the bulkhead. On her view of the video, the grievor
was the aggressor in a situation in which the inmate was not
presenting any real threat;
iii.&RXQVHOGLVWLQJXLVKHGWKHJULHYRU¶V2FFXUUHQFH5HSRUWIURP
those provided by other staff involved in the incident. She
suggested that a review of the video record demonstrated
WKDWWKHJULHYRU¶VLQDFFXUDcies were self-serving and
LQWHQWLRQDO,QKHUZRUGVWKH\ZHUH³VLJQLILFDQWDQGQRW
PLQLVFXOH´
iv.Counsel further referenced thH8QLRQ¶VDUJXPHQWWKDWWKH
investigation took an unreasonable period of time to
complete. In response, she observed that a decision to
terminate a CO is a very important matter and needs to be
approached in a deliberate fashion; and
v.7KH(PSOR\HU¶VORVVRIWUXVWin the grievor has to be
considered within the context of a Jail. Counsel suggested
that the need for trust is elevated in this type of facility.
[156] During the course of the hearing, there was a dispute between the parties as
to what conduct the Employer intended to capture by way of allegations #1 and #3
contained in the letter of termination dated December 1, 2008. After receiving and
considering the submissions of both counsel, I ruled that the allegation the grievor
used excessive force against inmate P.S. ZDVUHVWULFWHGWRWKHJULHYRU¶VDFWLRQV
while the inmate was on the ground during the third phase of the incident. I further
- 96 -
ruled that the allegation the grievor violated the Statement of Ethical Principles
HQFRPSDVVHGERWKWKHJULHYRU¶VLQLWLDOPovement towards the inmate during the
first phase of the incident and his interim actions during the second phase in which
he re-engaged with inmate P.S. in the Security Hall. When delivering this ruling, I
QRWHGWKH(PSOR\HU¶VDFNQRZOHGJHPHQWPDGHHDUO\RQLQWKHSURFHHGLQJWKDWLW
ZDVQRWWDNLQJWKHSRVLWLRQWKDWWKHJULHYRU¶V strike at the inmate, while they were
in the area of the bulkhead, actually made contact.
[157] I accept on the authorities cited that the onus is on the Employer to prove its
case through clear, convincing and cogent evidence. This is especially so, in a case
such as this, where a finding that the grievor used excessive force against the
inmate will likely put an end to his career as a CO.Accordingly, the evidence
must be closely examined and assessed to ensure it satisfies this somewhat higher
threshold. In Beltrano et al., Vice-Chair Petryshen commented as follows with
respect to the standard of proof required:
³,DJUHHZLWKWKH8QLRQ¶VVXEPLVVLRQWKDWWKHDSSURSULDWH
standard of proof when addressing these types of issues is
KLJKHUWKDQWKHVLPSOHFLYLOEXUGHQRIµRQWKH
SUHSRQGHUDQFHRIWKHHYLGHQFH¶$OWKRXJKWKHJULHYRUV
were not charged criminally, the Employer has alleged
that the grievors physically assaulted an inmate without
justification. In cases involving serious allegations of
this sort, most arbitrators have utilized a test that is
higher on the balance of probabilities scale, although
short of the criminal standard of beyond a reasonable
doubt. I find therefore that the Employer in this case is
required to prove its allegations with clear and cogent
- 97 -
evidence. Counsel for the Employer did not suggest
RWKHUZLVH´
The above described standard was also applied in Rate, Gillis et al. and Re A.B.F. Freight
Systems.
[158] This case is different from those cited to me in the sense that the events
which occurred on May 17, 2008 were captured by cameras # 1 and #7. The video
recordings were also used to create still photographs and enlarged photographs of
the events comprising the incident. All of these sources of information were
reviewed numerous times during the course of this lengthy hearing. Additionally,
this Vice-Chair has reviewed and assessed them at length during my deliberations.
[159] As noted earlier, Inspector McNair did not rely on camera #2 in the
Sallyport or camera #6 in the Inmate Visit Room as part of his investigation. I
was, however, provided with video recordings made from these two (2) cameras by
OM Vallee on January 21, 2010. Having looked at these recordings, I think it is
difficult to determine whether camera #2 would have captured the third phase of
the incident given that it took place on the floor immediately in front of the
Sallyport door. I am inclined to think that it would not likely have recorded that
part of the incident. This camera, though, might possibly have caught the
takedown by COs McGuire and McGhee close to the Sallyport door, as well as the
JULHYRU¶VDUPFRPLQJRXWRIWKHEXONKHDGHDUlier on. Video of these two (2) events
would not have significantly added to my understanding of what occurred given
- 98 -
that they were sufficiently recorded by cameras #1 and #7. Additionally, camera
#6, positioned inside the Inmate Visit Room, would only have captured people
standing in the open doorway from just above the knees and down. I accept Union
FRXQVHO¶VVXJJHVWLRQWKDWWKLVFDPHUDLIresorted to, might have shown how close
inmate P.S. was to the grievor when they were both in the bulkhead area during the
initial phase of the incident.
[160] While resort to these other two (2) cameras might have been helpful, I am
satisfied that the recordings from cameras #1 and #7, together with the other
available evidence, are sufficient to permit me to assess and determine what in fact
occurred between the grievor and the inmate on May 17, 2008.
[161] Having considered all of the evidence, including the video recordings and
the photographs produced therefrom, I find that the three (3) phases of the incident
occurred as set out below.
First Phase
[162] - The grievor is initially seen approaching the door to the Inmate Visit Room
from the Security Hall. He proceeded to open that door and then to hold it
open;
- Inmate P.S., after exiting from the Inmate Visit Room, remained in the area
of the bulkhead and was in relatively close proximity to the grievor. The
grievor, at this juncture, continued to hold the door open and was looking
into the Inmate Visit Room, presumably at inmate S.S. who was still inside;
- At 10:29:35 a.m., the grievor turned his head towards the Security Hall.
Inmate P.S. was then just inside the bulkhead. He appeared to be walking
- 99 -
into the Security Hall with his head turned back towards the grievor, as if he
was saying something to him;
- At 10:29:37 a.m., the inmate had turned and was facing the grievor from
outside the bulkhead. He again seemed to be conversing with the grievor in
a somewhat animated fashion. Inmate P.S. seemed to be smiling or smirking
at the time;
- By 10:29:39 a.m., inmate P.S. had turned back somewhat with his body
facing the interior of the Jail. His head was still turned towards the grievor.
7KHJULHYRU¶VDUPDQGKDQGLVWKHQobserved coming through the bulkhead
WRZDUGVWKHLQPDWH¶VKHDGDQGIDFLDODUHD,QPDWH36¶VDUPVZHQWXSLQDQ
apparent attempt to protect himself. By 10:29:40 a.m., the inmate had
backed up a step or two, and was facing the grievor with his arms down. He
then continued to backup;
- At this point, the grievor moved towards the emergency alarm located on
the wall outside of the two (2) Interview Rooms in the hallway leading to the
Resource Room. He pushed the alarm at 10:29:43 a.m. and then proceeded
into the Security Hall;
- At 10:29:44 a.m., the inmate is seen walking away from the area towards
the rear of the Jail with his arms by his side.
[163] I did not observe any physically aggressive act on the part of inmate P.S.
during the first phase of the incident. To the contrary, the sole act of aggression
VKRZQRQWKHYLGHRZDVWKHJULHYRU¶Vright arm and hand coming through the
EXONKHDGWRZDUGVWKHLQPDWH¶VKHDGDQGIDFLal area. Like Inspector McNair, I did
not see the grievor push inmate P.S. backwards in the chest area with an open
hand. As mentioned, the movement was towards the laWWHU¶VKHDGDQGIDFHDQG
was done, in my view, with what appeared to be a closed fist. It is unclear and
uncertain whether this strike made contact with the inmate.
- 100 -
[164] The computer generated images provided by the grievor appear blurred and
distorted. I am left with considerable uncertainty as to what they actually depict.
In my judgment, they are not sufficiently clear to justify any reliance being placed
on them. In this regard, I accept the EmSOR\HU¶VVXEPLVVLRQWKDWWKHLPDJHVGRQRW
represent an enhancement, as claimed by the Union. Ultimately, I find the video
and photographic evidence to be more persuasive.
[165] At the time the grievor made the above-described movement, the inmate was
in the process of moving away from him.,FDQQRWILQGVXSSRUWIRUWKHJULHYRU¶V
assertion that he believed inmate P.S. was about to move forward and assault him.
I note that when the grievor attempted to strike at inmate P.S., the latter was
actually further away from him than before. To be clear, I did not see the inmate
take a swing at the grievor during the first phase of the incident. His actions
appeared to be more defensive in nature.
[166] I accept that inmate P.S. made insulting, demeaning and inappropriate
comments to the grievor while they were both in the bulkhead, including asking
WKHJULHYRUZKHWKHUKHKDG³WRJHWWKHSLVVRXW´,IWKHJULHYRUSHUFHLYHGWKHODWWHU
comment as a threat, he should have known that the inmate did not have the
immediate ability to carry it out. If he truly felt threatened, the grievor should have
moved back earlier to the alarm prior to physically engaging the inmate. At the
time, he was clearly aware that other COs were close by. In this regard, I accept
- 101 -
0U,UHODQG¶VRSLQLRQWKDWWKHXVHRIIRUFHwas neither necessary or justified at the
time. I consider it more likely than not that the grievor attempted to strike the
inmate out of anger because of his disrespectful remarks. I note that inmate P.S.
did not have any physical contact with the grievor prior to the strike here in issue.
[167] In summary, I am satisfied that what was captured by the video cameras is
inconsistent with both the content of WKHJULHYRU¶V2FFXUUHQFH5HSRUWDQGWKH
evidence he presented at the hearing on several material points.
Second Phase
[168] As mentioned above, at 10:29:44 a.m. the inmate was walking away from
the grievor and proceeding down the Security Hall towards the rear of the facility.
CO Davenport appeared in the Security Hall shortly thereafter, at which time the
grievor and the inmate were physically engaged. Within a matter of seconds, COs
McGuire and McGhee entered the Security Hall and positioned inmate P.S. up
against the corner of the doorway leading to the Sallyport. At 10:29:49 a.m., the
video shows the grievor falling backwards to the floor.
[169] From the evidence, I conclude that the grievor initiated the physical
confrontatation with inmate P.S. during the second phase of the incident. On my
view of the video and photographic record, he threw the first blow. I accept that
this inmate then responded in kind. I reMHFWKRZHYHUWKHJULHYRU¶VDVVHUWLRQWKDW
he did not swing at the inmate and was, instead, just trying to restrain him by
- 102 -
grabbing his arms and shoulders. That version of events is not supported by the
video record.
[170] I find that there was no real need for the grievor to physically confront
the inmate, as the inmate was walking away from him with his hands at his side.
At that juncture, the grievor had already pushed the emergency alarm and could
have anticipated that assistance would arrive within a few seconds, as it ultimately
did. I have not been persuaded that he needed to act instantaneously in order to
stop the inmate from proceeding further into the Jail. At that point, there was no
real risk of imminent escape or of an assault to some other person. It is my
assessment that the grievor simply elected to continue the aggressive posture from
phase one.
Third Phase
[171] COs McGuire and McGhee were able to take inmate P.S. to the ground
by 10:29:51 a.m. CO McGuire was holdingWKHLQPDWHGRZQ7KHLQPDWH¶VERG\
ZDVUHVWLQJRQWRSRI&20F*KHH¶VOHJDV the latter had tripped backwards on the
way to the floor. By 10:29:53 a.m., the grievor was kneeling down in close
SUR[LPLW\WRWKHLQPDWH¶VERG\7KHYLGHRGHSLFWVWKHJULHYRU¶VULJKWDUPEHLQJ
pulled back and then moving forward toZDUGVWKHLQPDWH¶VXSSHUERG\ZKLOHWKH
inmate was still prone on the floor. At that time, there were four (4) other COs in
the immediate area. I note WKDWWKHJULHYRUDFNQRZOHGJHGWKDWKHGHOLYHUHG³DQ
- 103 -
open hand, right hand distractive strike to WKHWRSRI36¶VOHIWVLGHEHWZHHQWKH
side and top of his head with the meat ofP\KDQG´+HDOVR described the action
DV³DVWUDLJKWRSHQKDQGVWULNHWRWKHWRSRIKLVKHDG´2Wher COs, OM Mitchell
and Acting OM Heggie all then arrived in short order.Inmate P.S. was controlled,
handcuffed and then escorted out of the area to Segregation.
[172] It is difficult to see from the video whether the grievor struck inmate P.S.
with an open hand, as claimed, or whether the strike was delivered with a closed
fist. The sole witness who was able to testify on this point was CO Bauman. His
evidence was that the grievor gave the inmaWH³DIDFLDOGLVWUDFWLRQ´E\ZD\RI³D
palm strike with the right haQG´7KHRWKHUZLWQHVVHVHither did not see the strike
RUFRXOGQRWVD\ZKHWKHUWKHJULHYRU¶VKDQGZDVRSHQRUFORVHG,WLVDOVRKDUGWR
determine from the video if more than one (1) strike was delivered by the grievor.
[173] The question as to whether the grLHYRU¶VKDQGZDVRSHQRUFORVHGZKLOH
relevant, is not ultimately material. I acceSW0U,UHODQG¶VH[SHUWDVVHVVPHQWWKDWD
distractive strike should not have been emSOR\HGWRWKHLQPDWH¶VIDFHZKLOHKHZDV
on the ground, even if open-handed. I prefer his evidence on this issue to that
presented by Acting OM Heggie and COs McGhee, Bauman, Chauvin, Martinho,
McArter and Petroni. I note that the evidence of OMs Lewis and Vallee and
Acting OMs Varney and Kitchen was consistent with 0U,UHODQG¶VRSLQLRQ
Additionally, I am satisfied that there was no need for the grievor to deliver the
- 104 -
distractive strike. At the time, the inmate was on the ground and was surrounded
by four (4) other COs. I am left with no doubt that this group of COs could have
taken control of inmate P.S. without any need for the strike here in question.
[174] As stated above, I find that the strike was delivered at 10:29:53 a.m.
During the course of his evidence, the grievor seemed to suggest that the
movement of his arm at that time reflected an effort to secure the cord to his radio
which had fallen loose. I remain unconvinced that the cocking of his arm was for
that stated purpose. On my view of the video and photographs, the grievor
reattached the cord after he delivered the strike to the inmate.
[175] Lastly, I conclude that the incidents of June, 1998 and June, 2009 as
described by OM Vallee and Acting OM Varney, respectively, are distinguishable
from what occurred on May 17, 2008. In both of those incidents, strikes were
delivered because the inmates were actively involved in assaulting COs.
[176] In my judgment, the use of force employed by the grievor on May 17,
2008 was not authorized under section 7 of Regulation 778 of the Ministry of
Correctional Services Act. His actions were also contrary to the Adult Institutions
Policy and Procedures Manual, as they were not defensive or absolutely necessary
in the circumstances. On the evidence, there was no immediate threat to the
JULHYRU¶VSHUVRQDOVDIHW\Other options could, and indeed should, have been
resorted to as an alternative to the use of force. I am inclined to accept that the
- 105 -
grievor likely acted as he did, during all phases of the incident, in an effort to
punish the inmate for the inappropriate comments made while they were both in
WKHEXONKHDGDUHD7KHJULHYRU¶VDFWLons similarly contravened the Standing
Orders of the Windsor Jail, as he used more force than was necessary to restrain
inmate P.S., particularly in respect of the third phase of the incident.
[177] As previously determined, I am satisfied that the grievor was fully aware
RIWKHOLPLWDWLRQVUHJDUGLQJD&2¶VXVHRI force against an inmate. Ultimately, I
have been persuaded that the grievor breached the Statement of Ethical Principles
through his actions during the first two (2) phases of the incident. Additionally, I
find that the force used during the third phase, while the inmate was on the ground,
was neither reasonable or authorized. Rather, after considerable thought, I
conclude that it constituted an excessive use of force.The grievor did not act in a
defensive manner. Instead, he was the aggressor throughout the course of the
incident on May 17, 2008. The grievor did not first try to seek a peaceful
resolution. All of this was contrary to the basic training he received in 2002, as
described by Mr. Ireland, as well as the refresher training provided thereafter.
[178] I note that none of the witnesses to the events in the Security Hall
observed any injuries to the inmate at the time. Shortly thereafter, RN Imeson
performed a visual inspection of inmate P.S., through a window of his Segregation
cell, and recorded swelling and bruising to the left upper eye lid. She did not then
- 106 -
notice or record any injury to the right cheek, as shown in the photographs taken
by CO Davenport later that morning.
[179] It is apparent that the injuries sustained by inmate P.S. were relatively
minor in nature and did not require treatment or medication. That fact, however,
does not preclude a finding that the inmate was subjected to excessive force; see
Horan. Such a finding must be made only after a careful assessment of a number
of relevant matters, including the nature of the force used; the circumstances then
confronting the CO; whether the inmate posed an immediate threat to the CO or
others; the availability of other options; and the appropriateness of the response in
the context of the restrictions placed RQD&2¶VXVHRIIRUFHE\OHJLVODWLRQDQG
policy. In this instance, I determine that the grievor used excessive force while the
inmate was on the ground notwithstanding that the resulting injuries were minimal.
[180] I recognize that inmate P.S. was not watched in the Segregation cell
SHQGLQJ51,PHVRQ¶VDUULYDODQG&2'DYHQSRUW¶VVXEVHTXHnt attendance there to
take photographs. After considering all of the evidence, I think it likely that the
swelling and bruising observed by the RN ZDVWKHUHVXOWRIWKHJULHYRU¶VDGPLWWHG
³GLVWUDFWLYHVWULNH´7KHORFDWLRQRIWKHinjury is entirely consistent with the
respective positions of the grievor and the inmate at the time of the strike to the
ODWWHU¶VIDFLDODUHD,IWKLVLQPDWHZDVSUepared to self injure himself for purposes
- 107 -
of prejudicing the grievor, it is likely that he would have occasioned a more
dramatic injury for the camera and record.
[181] I accept that the incident of April 13, 2008, during which another inmate
threw a cup of urine in the JULHYRU¶VIDFHZDVDVHULRXVPDWWHUDQGRIUHDOFRQFHUQ
to the grievor. I note, however, that the grievor was able to return to work
following the incident without missing any scheduled shifts or requiring any
accommodation. I think it likely that this earlier incident contributed to the
JULHYRU¶VH[FHVVLYHUHVSRQVHRQKHDULQJWKHLQPDWHWZLFHDVNKLP³GR,KDYHWRJHW
WKHSLVVRXW´,WLVYHU\OLNHO\WKDWWKe grievor took real offence on hearing this
comment, and that such anger motivated him to strike out at the inmate in an
unauthorized and unprofessional manner.
[182] On the evidence, I am satisfied that the grievor prepared an incomplete
and inaccurate Occurrence Report contrary to the requirements of section 7(3) of
Regulation 778, the Standing Orders of the Windsor Jail, and the Adult Institutions
Policy and Procedures Manual. As previously determined, the grievor was aware
of the need to file a complete and accurate report concerning incidents of the type
which occurred on May 17, 2008. Nevertheless, his Occurrence Report failed to
meet the required standard.
>@7KHGHILFLHQFLHVLQWKHJULHYRU¶V Occurrence Report included the following:
i.The video record does not show that the grievor pushed inmate
P.S. backwards in the chest area with an open hand, as claimed.
- 108 -
,QVWHDGWKHPRYHPHQWZDVWRZDUGVWKHLQPDWH¶VIDFLDODUHDZLWK
what appeared to be a closed fist;
ii.After the grievor sounded the emergency alarm, I did not see on
the video that inmate P.S. took a step towards the grievor in a
fighting stance with both fists in the air. Rather, at that point, the
inmate was starting to walk away from the grievor down the
Security Hall; and
iii.The grievor failed to acknowledge that he was the aggressor during
the second phase of the incident.As I read his Occurrence Report,
he stated that he initially put his hands up in defence of future
strikes from the inmate. On my review of the video, it was the
grievor who pursued inmate P.S. down the Security Hall and
initiated a physical confrontation. It was only at that stage that the
inmate responded in kind.
[184] I find that the grievor had sufficient time to complete a proper
Occurrence Report. On the evidence, he started to prepare it at 10:54 a.m. and
returned the completed document to OM Mitchell at 12:45 p.m., a period of
approximately two (2) hours. I note that the grievor had been relieved from his
duties to give him the opportunity to complete an Occurrence Report about the
incident. If, for various reasons, the grievor felt that he required additional time,
he should have asked for same. It is also unclear from the evidence if the grievor
actually asked to see the video prior to starting work on his Occurrence Report. In
WKHILQDODQDO\VLV,GRQRWILQGWKHJULHYRU¶VH[SODQDWLRQVIRUZK\WKHGRFXPHQW
might be deficient to be persuasive. I further note that the grievor never filed an
Addendum despite his later acknowledgement that his Report was not entirely
accurate.
- 109 -
[185] I also reject the suggestion that OM Mitchell was out to get the grievor. I
cannot find that OM Mitchell, in any way, improperly influenced the decision of
Superintendent Marsh to terminate the JULHYRU¶VHPSOR\PHQW7KHIDFWVDQG
information considered by the Superintendent have been outlined earlier in this
Decision.
[186] I recognize that all of the Occurrence Reports submitted by both COs and
OMs pertaining to this incident were deficient in certain respects, and that the
grievor was the only person disciplined for this reason. In my view, there is a
material distinction between omissions and falsifications. On my reading, the
Occurrence Reports of the other individuals largely involved omitted matters that
could be easily discerned from other available sources, such as the video. In
contrast, I find that the content of thHJULHYRU¶V2FFXUUHQFH5HSRUWUHIOHFWHGD
deliberate and self serving attempt to hide or minimize his objectionable behavior.
Notwithstanding this conclusion, I do not think that this alone would have
supported a decision to terminate the grievor. Taken singularly, some lesser
discipline would have been in order.7KHQDWXUHDQGFRQWHQWRIWKHJULHYRU¶V
Occurrence Report is, however, a relevant consideration in determining whether
6XSHULQWHQGHQW0DUVK¶VGHFLVLRQZDVMXstified given all of the circumstances.
>
- 110 -
letter of termination of December 1, 2008. I do not construe that letter, however,
as reflective of an intent on the part of the Employer to treat the events of May 17,
2008 as a culminating incident, as that term is commonly understood. On my
reading, the Superintendent determined that the specific allegations complained of
were sufficiently serious on their own to justify termination. He further concluded
WKDWWKHJULHYRU¶VSDVWGLVFLSOLQDU\UHFRUGVXJJHVWHGWKDWKHFRXOGQRWOLNHO\EH
rehabilitated as a trustworthy employee, and that nothing short of termination
would likely be effective as a corrective sanction. The record, in my judgment,
was used for purposes of progressive discipline and not for the purpose of applying
the doctrine of culminating incident. It is unnecessary to comment further on this
given my conclusion that the grievor used excessive force against inmate P.S.
during the third phase of the incident; breached the Statement of Ethical Principles
during the two (2) earlier phases; and intentionally filed an incomplete and
inaccurate Occurrence Report for self-serving reasons. This misconduct, in view
of the prior discipline record, supportV6XSHULQWHQGHQW0DUVK¶VGHFLVLRQWR
WHUPLQDWHWKHJULHYRU¶VHPSOR\PHQWas a CO at the Windsor Jail.
[188] Like Superintendent Marsh, I am unable to isolate any mitigating
circumstances that would support the imposition of some lesser discipline. I have
QRWEHHQSHUVXDGHGWKDWWKHJULHYRU³RZQHGXS´WRKLVPLVWDNHVDQGWKDWKHKDV
learned from them, as claimed. Given this conclusion, there is no need to address
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WKH(PSOR\HU¶VVHFRQGDOWHUQDWHDUJXPHQWthat damages should be awarded in lieu
of any reinstatement.
[189] The grievor, as previously mentioned, filed two (2) grievances dated June
4, 2008. He asserted therein that he received inadequate support and assistance
following both the urine incident of April 13, 2008 and the incident with inmate
P.S. on May 17, 2008. After considering the evidence relating to both matters, it is
my decision to deny these grievances. With respect to the earlier incident, I note
that the grievor was able to return to work without missing any shifts or requiring
any accommodation. It does not appear that he ever spoke to management about
the possible need for any personal support and assistance. On the evidence, OM
Vallee did contact the grievor shortly after the incident to see how he was doing.
With respect to the later incident involving inmate P.S., there is no evidence that
the Employer was told, or was even aware, that the grievor may have required
support and assistance as a consequence of the incident. The record discloses that
the grievor did take advantage of the EAP. Ultimately, I find that the Union is not
entitled to the declarations sought.
[190] The grievance of June 12, 2008 claimed that the Employer subjected the
grievor to a CISU investigation interview on June 9, 2008 that was harassing,
intimidating and designed to arrive at a prearranged result. 8QLRQFRXQVHO¶V
argument on this issue is set out in paragraph [136] v. of this Decision. I am
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inclined to agree with the submission that Inspector McNair twice put inaccurate
information to the grievor while questioning him. While I have some concerns
about this occurring, I do not think that it constituted an abuse of the investigative
process. Without definitively deciding the point, these missteps may have been a
product of the large volume of detail collected from the various interviews and the
consequent difficulty of keeping track of all of the specific comments of the
individuals involved. They may also KDYHUHVXOWHGIURP,QVSHFWRU0F1DLU¶V
relative inexperience in conducting excessive use of force investigations on his
own. I have not been persuaded, though, that Inspector McNair was biased against
the grievor or that he was out to get him. Rather, I think it likely there was some
tension between them during the interview as the Inspector found it difficult to
UHFRQFLOHWKHJULHYRU¶VDFFRXQWRIHYHQWV with what was recorded by the video
cameras. I reject the submission that aOORI,QVSHFWRU0F1DLU¶VHYLGHQFHVKRXOGEH
viewed as tainted and that the grievor is entitled to an award of general damages
because of the way the interview of June 9, 2008 was conducted.
[191] While on the subject of the investigation process, there were two (2)
other concerns raised. First, Union counsel submitted that Inspector McNair
should have spoken to the Control Room Officer in an effort to discover what, if
anything, he saw directly or through the various monitors. I accept that this should
have been done. I do not, however, consider the failure to do so as a fatal flaw. In
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my judgment, the recordings from cameras #1 and #7 provide sufficient evidence
of what occurred during the incident of May 17, 2008. Second, Union counsel was
critical of Inspector McNair for referencing the Code of Silence during his
evidence and for suggesting it inhibited the conduct of his investigation. I have not
found it necessary to consider the Code of Silence at any length given the
availability of the video and photographic record. I do note that the impact of the
Code has been recognized in a number of Grievance Settlement Board Decisions,
including in Beltrano et al., which arose out of a dispute at the Windsor Jail. In
summary, while the investigation conducted by Inspector McNair was not perfect,
I am satisfied that it was sufficient in the circumstances. Any errors that were
made by him did not have a determinative effect, in the sense they led directly to
6XSHULQWHQGHQW0DUVK¶VXOWLPDWHGHFLVLRQ
[192] The grievance of September 11, 2008 reads, in part:
³67$7(0(172)*5,(9$1&(
I grieve that management subjected me to a CISU investigation
which is now over three months (since my interview). My
investigation meeting was June 9, 2008 and it is now September
11, 2008. The unreasonable delay in completing and delivering
such an investigation has caused both financial and other
hardship on myself and my family. I have been suspended from
work since May 17, 2008 and unable to obtain hours. All
attempts to find out about this timeframe have been met with
resistance and lack of consideration for my circumstances.
SETTLEMENT DESIRED
Full redress.
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That this investigation be completed immediately and I be
reinstated with full compensation of monies for my regular
hours, average of overtime, shift and other premiums as
DSSOLFDEOH«««««««««««««««««
««««««««««««««««««««««´
[193] As indicated above, the Investigation Report relating to this matter was
completed on September 22, 2008; the Allegation Meeting was conducted on
2FWREHU DQGWKHJULHYRU¶VHPSOoyment was subsequently terminated on
December 1, 2008. The Union relies on the Decision in Sammy et al. in support of
the position that the investigation and the follow-up was excessively delayed. That
case involved an application for interim relief, in the form of monetary
compensation following the suspension without pay of several unclassified COs
pending investigation of an incident which occurred on February 2, 2001. The
investigation, in that instance, commenced on February 3, 2001; all interviews
were completed by May 23, 2001; and the final report was delivered to the
Employer on July 24, 2001. It appears that the Employer there had not acted on
the report by the time the application for interim relief was heard by the Grievance
Settlement Board on September 5 and September 18, 2001.
[194] The Union in Sammy et al. submitted that there were substantial periods
of inaction by the Employer in its investigation which caused significant hardship
to the grievors. After hearing evidence and submissions on the respective interests
relevant to the interim application, Vice-Chair D.A. Harris concluded that the
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balance of harm favoured an order that the grievors be compensated from and after
August 1, 2001. His Decision reads:
³)URPDODERXUUHODWLRQVSHUVSHFtive, and for the purposes of
this interim order, I take it that the Employer had a legitimate
interest in thoroughly investigating the allegations arising from
the incident of February 2, 2001. It promptly initiated the
investigation by appointing Mr. Ewing to complete it. There is
no evidence before the Board that he did or did not do so in a
WLPHO\IDVKLRQ«««««««««««««
«««««««««««««««««««««««
From and after the tendering of his report to the Employer on
July 24, 2001, there was a requirement upon the Employer to
act with dispatch in dealing with the allegations contained in
the report. Once the Employer was fixed with the results of the
investigation, it had an obligation promptly to make final
decisions with respect to the status of the grievors. That is so
whether the suspensions are taken to have been pursuant to the
Public Service Act or a management right. The authority to
suspend under the Act is during the period of the investigation,
which came to a close after the Employer had a reasonable
SHULRGRIWLPHWRLQIRUPLWVHOIRIWKHUHVXOWVRI0U(ZLQJ¶V
HIIRUWV+LVUHSRUWZDVDYDLODEOH-XO\0DQDJHPHQWV¶
rights are a labour-relations concept that is tempered by the law.
The principle that delay is harmful to labour-relations is well
HVWDEOLVKHG´
(page 9)
-and-
³«««««7KLVGHFLVLRQLVPDGHRQWKHEDVLVRIWKH
detrimental labour-relations consHTXHQFHVRIWKH(PSOR\HU¶V
delay in dealing with the results of its investigation. The
grievors ought not to bear the cost of that delay pending the
hearing on the PHULWV«««««««««««««
««««««««««««««««««««««´
(page 11)
- 116 -
[195] I recognize that the above comments were made in the context of an
application for interim relief, which required Vice-Chair Harris to balance the
competing interests of the parties. This is a different case here, as relief is being
sought after a hearing on the merits reODWLQJWRWKHJULHYRU¶VWHUPLQDWLRQ
Nonetheless, I find that his observations about the detrimental impact of delay on
labour relations is similarly applicable to the present case.
[196] After considering the evidence, I have not been persuaded that there was
unreasonable or undue delay between the commencement of the investigation on
May 19, 2008 and the completion of the Investigation Report on September 22,
2008. This was a complex investigation which necessitated a significant
investment of time and effort, particularly given the number of individuals
involved. Additionally, some of the delay which occurred in this period was likely
related to the fact that the criminal charges brought against inmate P.S. by the
grievor were not heard in Court until late August, 2008. I do conclude, however,
that there was excess delay between the completion of the Investigation Report and
WKHJULHYRU¶VVXEVHTXHQWWHUPLQDWLRQRQDecember 1, 2008, some two (2) months
later. I note that the Allegation Meeting was not held until October 29, 2008 and
that the decision to terminate was not communicated to the grievor until more than
another month had elapsed. The reasons for the delay following receipt of
,QVSHFWRU0F1DLU¶VUHSRUWZHQWODrgely unexplained at the hearing.
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[197] In the final analysis, I conclude that the Employer should have acted in a
more expeditious fashion following the release of the Investigation Report on
September 22, 2008. I conclude that the Employer had ample opportunity to assess
the report, meet with the grievor and his representatives, and then communicate its
ultimate disposition to him by October 31, 2008 at the latest. As a consequence, I
determine that the grievor is entitled to financial compensation representing one (1)
month of delay. As requested, I leave the requisite calculation of this to the
parties. I will remain seized of the issue for purposes of implementation. This
finding, as acknowledged by counsel for the Union, captures and encompasses the
third grievance filed on June 4, 2008.
[198] In Beltrano et al., Vice-Chair Petryshen made the following observation:
³7KHGXWLHVRID&2LQFOXGH the care, custody and control
of inmates and because of their role, COs are in a
position of power and trust. In performing their duties,
COs are confronted with many challenges, including
health and safety risks. Inmates can often be physically
and verbally abusive with each other and they can be
verbally and physically abusive with COs. COs are
trained to deal with the realities of an institutional setting,
including how to deal with uncooperative, verbally
abusive, and unpredictable inmates. The exercise of self-
control is a necessary quality for a CO who will be
confronted undoubtedly with provocative situations.
«««««««««««««««««««««´
In this case, the grievor failed to exercise the required degree of self control and
was the physical aggressor during the first two (2) phases of the incident. During
- 118 -
the third phase he used inappropriate, unnecessary and excessive force against an
inmate on the floor. His explanation as to the events, both in the Occurrence
Report and in the evidence presented at the hearing was inconsistent, and in several
material respects in conflict, with the video and photographic record. I am
VDWLVILHGWKDWWKHJULHYRU¶VFRQGXFWRQ0Dy 17, 2008 and his subsequent lack of
candour and remorse constitute a significant breach of trust and are indicative of an
irrepairable breakdown in the employment relationship, all of which entitled the
Employer to terminate his employment as a CO.
[199] For all of the above reasons, the grievance of December 1, 2008 is
denied. The grievance of September 11, 2008 is allowed in part. All other
grievances are denied.
th
Dated at Toronto this 27 day of September 2011.
M.V. Watters, Vice-Chair