HomeMy WebLinkAbout1981-0556.Thibert el al.82-04-06B e tw een
Before:
For the Grievor:
556/81
IN THE mATTER OF AN ARBITRATION
Under The
CROwN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
For the Employer:
Hearings:
OPSEU (Thibert McGi ll Jung grievances)
Grievors
and
The Crown in Right of Ontario
(Ministry of correctional Services)
Empl oyer.
Professor P. G. Barton Vice-chairman
D. B. Middleton Member
Professor F. D..Collom Member
A, Ryder, Counsel
Cameron, Brewin & Scott
J. F. Benedict, Manager
Compensation & Staff Relations
Human Resources Management
Ministry of Correctional Services
December
4 1981
December 7, 1981
December 8, 1981
December 16, 1981
December
17, 1981
January 26, 1982.
INTRODUCTION
This matter involves three grievances filed by
(1) Emil Jung. This Grievor started as a casual in November,
1979 and in November, 1980, became part of the Probationary
staff at the Lindsay Jail. On September 4, 1981, he was
dismissed.
(2) Gary Thibert. Mr. Thibert was appointed to the Unclassified
Staff on December 31, 1973, and to the Classified Staff as a
Correctional Officer on April 22, 1974. On September 4, 1981,
he was dismissed.
(3) Raymond McGill. This Grievor was appointed to the Unclassified
Staff on February 9, 1981. He was dismissed on September 4, 1981.
All three grievances relate to an incident alleging
excessive force used on an inmate called Gary Barnes at the
Lindsay Jail on May 27, 1981.
2. SETTING
The Lindsay Jail is a County institution employing
22 persons which was constructed 118 years ago. It is a
maximum security institution which handles approximately
1,200 admissions each year, involving remands and short sentences.
There are a number of different cell block areas in which various
types of prisoners can be kept. Cell Block 1 is the segregation
area involving 6 segregation cells, a small washroom, and a
common area-in which is found a table. The common area is
approximately 30 feet long by 10 feet wide. Individual cells
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are throe feet by eight feet with separately locked doors. At
the west end of the cell corridor area described above, is a
set of stairs leading to a locked door in which a grill is set,
Behind this grill is the administration area.
of the corridor area is a small three foot doorway leading
to the
'At the east end
washroom area. On the east wall immediately adjacent to this
doorway
is a radiator with pipes coming and going to it and from
it. Immediately in front of Cells number 4 and 5 is an 8 foot
table which is affixed to the wall, is approximately 3 feet wide,
and has
a fixed bench. Photos of the corridor (Exhibits 21 to 25)
show it to be an austere area painted in white with a
terrazzo or tile floor.
3. GENERAL OUTLINE OF EVENTS
On April 17, 1981, three prisoners with considerable Federal time,
i.e., time served in Federal institutions, were arrested by the
Lindsay Police. There was some apprehension on the part of the
Police that these prisoners might be dangerous and this apprehen-
sion was conveyed to the personnel at the jail to which they were.
taken. As is common when prisoners with Federal experience
arrive
at a Provincial institution, these persons being Barnes,
Grabant, and another, made it clear from the beginning that they
were tough guys. It soon became clear that they were not impressed
by being at a Provincial institution and wished to be moved to a
Federal one. They made this clear by being constantly verbally
aggressive and abusive towards guards, throwing their meals and
pails of urine at guards, boasting about how tough they were, and
generally making excessive demands for what they considered to be
4
their rights,
On April 20, for example, Barnes was found digging a
hole in the ceiling of a washroom, a pipe was pulled from a
ceiling and fire alarms were set off.
On April 24, a serious incident involving the three
inmates occurred in which three guards were beaten up by these
prisoners. One
of these guards, John Blackmore, was badly
beaten up by Barnes and suffered severe lacerations to his
head; a broken nose, and other injuries.
at the date of this hearing as a result of that incident. It
appears that Barnes took advantage of catching him in a one-on
one Situation and continued to inflict injuries on him, even
though he was unconscious, A second officer, Officer Bryans,
He was still off work
suffered a broken jaw
and was off work until November, 1981. A third officer, G. Widdis,
was badly beaten about the face and suffered numerous cuts.
was off duty for one week.
and miscellaneous injuries in the incident
He
As a result of this incident on the 24th, tensions were
quite high within the institution.
Sgt. Taylor, who came on duty at 6:40 a.m., wrote a note in
the Information Log which is seen by all staff. The note reads
On the morning of May 25th,
as follows:
"Brabant and Barnes to remain in Cells in number
1 corridor. Meals (to be on) paper. No privelages,
(Sic). At least 2' officers with riot (sticks) to
be in corridor any time one of them is out of cell
(when) washup, etc. No medication for either until
further notice by order Supt. Initials N.T.)"
The riot. sticks referred to in this note are sticks approximately
3 feet long and about 1 to 1½” in diameter, made of heavy plastic.
They are quite heavy and are designed for use in crowd control.
Although
these were kept at the institution, no person had ever
been instructed in the use of them and they had not been ordered
out on any other
occasion.
On May 26th, Brabant, who was in the segregation area
referred to earlier, was taken from that area a; 1:00 p.m. for a
shower. During an altercation
on the stairs, he suffered an injury
which led to his being taken to the hospital. As a result of this
incident, one person, Sargeant Whalen, was dismissed.
On May 27th, 1981, Barnes was in Cell number 5 in the
segregation area referred to earlier. Brabant was in Cell number
1. Sargeant McGinn was on duty outside the cell area. At
approximately 10:15 p.m., an incident occurred in the cell block
area involving the 3 grievors, which led to Barnes being taken
to the hospital.
This incident
was first investigated by the Lindsay
Police. On May 29th, Inspector C. Leutz from the Ministry of
Correctional Services returned to the jail (he had been called
in on the 25th) and he began an investigation of the incident,
taking statements from the 3 grievors on May 31st. On June 2nd,
the Ontario Provincial Police was called in, in the form of
S. Raybould, an investigator from the Criminal Investigations
Branch, O.P.P. He concluded his investigation on July 23rd.
Inspector Leutz
statements from
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resumed his investigation and took further
the grievors on July 27th. and 29th. His reports on the
matter were submitted to his superiors in August, and a decision
was made by Superintendent J.T. O'Brien, Elgin Middlesex
Detention Centre, to dismiss the three grievors.
4. FORMAL REQUIREMENTS
The custody of inmates is governed, inter alia, by the
Ministry of Correctional Services Act, 1978 (as it then was). The
Leutz investigation was governed by Section 22 of that Act. The
use of force is governed by Ontario Regulation 243/79 (as it then
was), Section 7 of those Regulations reads as follows:
"Section 7 (1)
No employee shall use force against an inmate
unless force is required in order to
(a) enforce
discipline and maintain order within the
institution,
(b) defend the employee or another
employee or inmate from assault, (c) control
a
rebellious or disturbed inmate, or (d) conduct a
search, but where force is used 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.
Subsection (2
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."
By virtue of Section 28 of the Regulations, certain
conduct can amount to an inmate misconduct. This includes
"Subsection 1(B) 'commits or threatens to commit assault upon
another person". When a misconduct has occurred, the final
decision on whether to discipline the inmate is left to the
Superintendent by virtue of Section 30. The primary document
upon which the decision is made is a Misconduct Report filed by
a member of the staff. A number of sanctions are provided by
Section 31 of the Regulations ranging from loss of privileges,
or reprimands, to close confinement on a strict diet,
Within the jail, the staff are governed
by certain
standing Orders. Standing Order Number
7 includes: "An accident
and Injury Report is required whenever an inmate
is injured." It
is the responsibility of the employee in charge of the inmate to
complete such a report. There is a section in the report for
comments by the Shift Supervisor.
Standing Order 19 refers to the use of force. Part
of
it reads as follows:
.If a situation arises when it is necessary
for an employee to use force, he shall use no
more force than is necessary
to restrain the
inmates. When an employee has found it necessary
to use force,
he shall make a full report to his
Supervisor stating the inmates name and what
happened and why it was necessary to use force."
Within the institution, a manual is kept in which certain standards
and procedures are set out. Section A-1, page 5 refers to allegations
of an assualt of an inmate. It includes:
"Every Reported Incidence
of a Staff Member
Allegedly Assaulting an Inmate Must be Com-
municated Immediately to the Superintendent who
will Initiate a Full Investigation, .,.certain
restraining
force may be employed when it is
necessary
to control the actions of an agitated
or rebellious inmate, and the staff member has
the normal right to defend himself if he is
attacked".
-8-
By virtue of page 3 of Section A(2) of the manual,
where an inmate assaults a staff, certain things are required,
in particular,
"Whenever a staff member is allegedly assaulted
by an inmate, the particulars of the assault are
to be reported verbally to the Superintendent
as quickly as possible. A Misconduct Report
should then be submitted. “
The three grievors signed a document which is signed
all members of the staff, which document is headed "Re
Assault on Inmate" and is dated July 25, 1968. It reads as
follows:
"Dear Sir:
RE: Assault on Inmates
It has come to my attention that no written
instructions have every been issued to City
and county Jails specifically prohibiting
assault on inmates
by employees, nor apparently
has there been anything in writing indicating
the penalties for such assault. You are
therefore directed to inform all employees of
your institution that assault on inmates
involving the' improper use of physical force
(example: slapping, striking or punching) .will
not be tolerated. Where it has been established
that such action has taken place, the offending
employee will be dismissed from the service.
There are of course occasions when it is
necessary for employees to use some form of
physical force in order to control the behaviour
of certain wards or inmates. Some may become
disturbed, aggetated (sic) or rebellious to the point.
where it
is necessary to restrain by physical
force, but only sufficient force should be used
in order to accomplish the restraint. In adult
institutions, an inmate may become aggitated (sic) and
attack an employee or another inmate. Certainly
restraining force should be used and an employee
or inmate has every right to defend himself and
others against physical attack. However, in
-9-
every instance where physical force is used, a
complete written report of the incident will be
made and submitted through the usual channels
to the Governor.
I realize that such instructions are not
necessary for the great majority
of’ your staff
who would not entertain the practice of this
form of assault in any case. However, so that
no
one can be in any doubt about the consequences,
you are to reproduce this letter and have every
employee read and sign a copy. The signed copy
should be placed on his or her file. Future
employees should be required to sign a copy as
part of the induction routine.”
(signed)
Deputy Minister.
As indicated, each of the grievors signed a copy of
this letter when they joined the Ministry.
The incident was seen or participated in by five.
persons. In particular, they are (1) the inmate Barnes,
(2) the 3 grievors, Jung Thibert and McGill, and (3) the
Sargeant on-duty outside the corridor, Sargeant McGinn. A
considerable amount of time was spent during the five days of
evidence in unravelling this event, and in order to do justice
to the seriousness of the matter it is necessary to look at
this evidence in some detail. Operating on the basis of the
theory that the closer to the incident, the more reliable the
reports and memory, the evidence of the various witnesses will
be dealt with by looking first at the various reports that they
submitted, and finally, at the evidence at the hearing.
10
(a) Tile Inmate BARNES
The first formal statement by Barnes was taken by.
Inspector Leutz at Millbrook Correctional Centre on June 2, 1981.
Barnes was moved there from Lindsay on the 29th of May. In the
statement, he refers
to the fact that he was dressed in a baby-
doll. This is a heavy, quilted article of clothing, with no arms
which hangs down approximately to a person's knees.
the incident as follows:
He describes
"They came to my cell and said its time to clean
up, I got up and walked out of the cell. I
stopped at the wash area of #1 corridor and waited
for the officer Thibert
to get out of the way and
he threw a punch at me, I moved and it grazed the
and the billies, riot sticks, started to hit me.
I tried to protect myself by covering my face and
crawled under the bench. They pulled me out and
kept hitting me. The officers were known to me
but I don't know their names.
I was hit several times and was in a daze and made
like they knocked me out so would stop. They hand-
cuffed
me and threw me into the cell. I was covered
with blood
right side of my right jaw. I fell on the floor
On August 6, 1981, he made a subsequent statement
at Millhaven Penitentiary in which he suggested that all three
grievors hit him with the sticks, that he never indicated to
anybody that he knew karate or martial arts, that he was not being
abusive prior to the incident, and that he did not hit his head
on a radiator or pipes or a wall. during the incident. He also
indicates
"Question: Were you struck on the head with sticks?
In his evidence-in-chief during the hearing, he indicated that
Answer: Yeah. I have 2 cuts."
he was in Cell number 5 in the corridor. Thibert and two officers
armed with riot sticks came to the cell and one said
"Come on out for a wash."
11
He left the cell, picked up a towel from the bench in
the corridor, put the towel over his right hand and started
toward the washroom door. Thibert was standing in the way of
the door (the small, 3 foot wide door referred to earlier), and
had a toothbrush in his hand. He put his hand out to get it
and was punched in the face.
He used his right hand to reach
forward. He was then knocked backward and struck from behind
with billy clubs on the back and the back of the head.
down and was hit by the billies, put his hands up to cover his
He fell
head. He crawled toward the bench and table, grabbed the steel
leg of the bench and pulled himself half under the bench with
his legs still sticking out.
this stage and was pulled back-out and hit several more times.
He also indicated he did not anticipate being beaten up because
he had already been out for a shower that day and had not been
hurt. He indicated that during the altercation, Thibert left
He was getting hit on the legs at
for approximately 5 seconds, at which time he was on
the floor being beaten, rolling around, dragging himself toward
inch He denied making any aggressive move toward Thibert
and indicated, that Thibert hit him first.
(b) Sargent McGinn
Sargeant McGinn
filed an Occurrence Report which was
prepared at 23:15 hours on the 27th. He indicates
When Barnes was released from his Cell, he
went towards the washroom and Mr. Thibert was
there. Mr. Thibert gave him a toothbrush, but
I/Barnes seized Mr. Thibert by the wrists and
pulled him toward him. Mr. Thibert defended
himself and in the struggle, I/Barnes fell
against the radiator and struck his head. The
12
officers present assisted Mr. Thibert in
restraining him.
It concludes:
"All staff conducted themselves according to
Standing Orders for this location and should be
congratulated for the way they dealt with the
situation".
Sargeant McGinn gave a further statement on July
29,
1981, to Inspector Leutz. In this statement, he indicated that
Mr. Thibert had the toothbrush in his left and toothpaste in his
right hand. Barnes grabbed Mr. Thibert by his left hand. He
pulled Mr. Thibert off balance and Mr. Thibert reacted by reflex
and hit Barnes once as they went down. He continues
"Barnes fell back with Mr. Thibert on top of him
and struck his head on the area of the east wall,
either the radiator or the pipes, I didn't see the
actual impact".
Mr. Thibert got to his feet and Barnes started to
get up. He was told to stay down: He didn't
comply and Mr. Jung and Mr. McGill struck Barnes
several times in the legs and arms. During that
time, Mr. Thibert returned to the grill at number
1 corridor entrance where I gave him a riot stick
and handcuffs
-"Barnes continued to strike out at the officers and
thrash around. He was warned to cool down and lay
face down on the floor 2nd place his hands behind
his .back in the cell."
.He also indicates that he, the witness, saw the entire
incident, that Barnes had been abusive for at least 24 hours
before the incident, that Barnes never managed to crawl under the
table, although he made a move in that direction. He also
13
indicated that Mr. McGill lost his stick at one time during the
incident, that Barnes was struck half a dozen times, but was
never struck on the head..
In his evidence at the hearing after referring to
Barnes going and picking up his towel and heading toward the
washroom, he indicated that Thibert was in the doorway with
his back to the south wall of the doorway, looking toward the
rad on the east wall. He indicated that Barnes reached out
with his right hand and grabbed the right wrist of Thibert.
Barnes then
drew his left arm back and punched at Mr. Thibert's
head.
cheek with his right hand, a glancing blow. They fell to the
Mr. Thibert reflected the blow and hit Barnes on the right
ground, there was a brief struggle and Thibert came to the grill
to-ask for cuffs. He also reached through the grill and picked
up- a night stick which was; he states, standing outside the door.
He also indicated that Mr. Jung stepped in and cross-checked
Barnes against the wall, and that he heard a clattering sound of
a stick on the floor or wall. He saw both McGill and Jung hit
Barnes with the sticks at least twice each, and also saw Thibert
hit him with a chopping motion on the right leg area twice,
When questioned about whether or not Barnes had fallen against
the radiator, he said
"From where I observed, it appeared he fell back in
that general area.
lie never saw Barnes hit on the head- He also indicated that
Thibert was in a state of high excitement or shock when he came
to the grill asking for cuffs and that the general scuttlebutt in
the institution was that both Barnes and Brabant were proficient
in martial arts,
14
(c) G. THIBERT
The first reference to the incident by this grievor
was at 2:15 on the morning of the 28th and is contained in a
remarkably brief occurrence report. It reads as follows:
"At approximately 22:15 hours this date,
we were doing the washup in number 1
corridor, 1/14 Barnes was led out of his
cell, he stepped into the washroom and
I offered him his toothbrush at this time.
He grabbed my left wrist and swung at me,
He was restrained by myself and Mr. Jung and
Mr. McGill and placed in a cell." --_-__
The next reference to the incident occurred in a
statement taken by Inspector Leutz on May 31, 1981. The relevant
part reads as follows:
''We went down to Barnes cell, let him out and
he went to the washroom area. I stuck out my
hand offering the toothbrush and he grabbed my
wrists. He then docked his fist and pulled me
towards him. He swung and missed and I hit him;
we both fell to the floor. I shook myself free,
I ran to the grill and grabbed a riot stick and
cuffs.
The officers yelled at Barnes to stay put and he
was up and kept coming at them. the officers
hit Barnes in the arms and legs to get him down.
I hit him as well in the legs. Barnes finally
went down; he hit the table and I got him to
stay down.
his back. He put one hand back and he was hand-
I ordered him to put his hands behind
cuffed. He was then put in his cell."
A subsequent statement was taken by Inspector Leutz by
the grievor on July 29, 1981 Included in this is
We fell out from the washroom entrance
I fell on top of Barnes. When I hit the floor,
Barnes released his grip. I broke free and ran
to the grill (#1 corridor entrance) yelled for
handcuffs and
was issued handcuffs and riot stick.
I returned to the area, Barnes was still very
aggressive towards staffs, swinging and kicking.
I ordered him to stop, so I hit him several times
in the legs trying to get him down.
He also indicates:
"When it was all over we were close to the table,
I didn't see him try to get under the table, but
when I went for the stick, he could have."
He was asked
"Was Barnes struck at any time in the head with
riot sticks during the incident?"
"Answer: !Jot to my knowledge. “
At the hearing, the grievor indicated that when he
entered the corridor he had the key, a toothbrush and toothpaste,
Barnes came out of number 5 Cell when he was released, went to
the table to get his towel and picked it up. He, the grievor,
waited
at the entrance to the washroom and Barnes walked toward
the door followed
by the two officers. He held out his left
hand with the toothbrush in it, Barnes grabbed his left wrist,
pulled him toward himself, cocked his fist and swung at him.
He raised his right arm to block this and hit down at Barnes
with his right hand, hitting him. They subsequently fell to the
ground, he got up and ran to the corridor door where he was
offered handcuffs. He picked up a riot stick and as he returned
to the melee, he saw Barnes come toward him and decided to try
and get him down on the floor.
2 or 3 times on the legs with the baton. He told him to stop
the foolishness and Barnes did so. They were near the table at
this time and Barnes was handcuffed and slid into his Cell,
He swung his stick and hit Barnes
16
He also indicated that he doesn't know why-he picked
He didn't recall telling up the riot stick at the grill area.
Barnes to "Cool it". He was dismayed and totally surprised
by the incident, and
he assumed that Barnes hit his head on a
radiator when they fell to the floor together;..
(c) EMIL JUNG
At 23:15 on the 27th, the grievor filed an Occurrence
Report which reads
as follows:
"Assault on Mr. Thibert by I/M Barnes, Sir,
On Wednesday the 27/05/81, at approximately
22:20
p.m., we were carrying on with our
regular nightly lockup procedure. I/M Barnes,
number 320-81-00030, who was asking all night
for a toothbrush, was asked to come out of his
Cell and washup. As he stepped into the wash
room
area and Mr. Thibert handed I/M Barnes a
toothbrush, I/M Barnes made a hasty move toward
Mr. Thibert and grabbed the toothbrush and Mr.
Thibert's wrist'.
by Mr. Thibert, Mr. McGill and myself and placed
back into an empty Cell."
I/M Barnes was quickly restrained
The grievor
was interviewed by Mr, Leutz on July 27th,
1981, and gave a subsequent statement. He indicates that Barnes
did, in fact, take a swing at Mr, Thibert. He indicates
"When Mr. Thibert handed Inmate Barnes a tooth-
brush, Barnes grabbed Mr. Thibert's hand and
swung at him. Mr. Thibert ducked the punch and
returned the blow to Inmate Barnes. Both of them
went
down. Mr. Thibert jumped up and ran to the
grill where Mr. McGinn handed him the handcuffs
and
a stick. Inmate Barnes tried to lunge after
him, and
we, Mr. McGill and I pushed him back 'with
our sticks. Then Mr. Thibert came back with his
stick and told the Inmate to put his hands against
the wall. He didn't comply Mr. Thibert repeated
it a few times and he wouldn't listen. Mr. Thibert
tried to knock the feet from under the Inmate with
the sticks. When Mr. Thibert went to the grill to
get a stick, the innate was on his feet, kicked the
17
stick out of Mr. McGill's hand and tried to go
grab his stick. I hit him in the shoulders to
prevent him from gaining the stick."
He also indicates that Thibert struck Barnes 3 or 4
times trying to knock him down. Thibert hit him a few times,
He went down, but he came back up. He indicates that in total,
Barnes was hit
10 times with the riot sticks in the shoulders,
arms and legs area. He does not think that Barnes was hit on
the head. He did not see Barnes hit his head on the radiator,
Barnes did not crawl under the table and could have hit his head
on the table.
He indicates as well that he hit Barnes 3 to 5 times,
In his oral evidence, he indicates that after Thibert
was grabbed by Barnes and
a punch was thrown, both Barnes and
Thibert fell to the floor where there was a short struggle.
Thibert ran to the stair area, Barnes jumped up and he, Jung,
pushed him
to the radiator wall with the stick.
When
Barnes hit the
wall and counter-attacked toward McGill. At this stage, McGill
lost his stick and this is when Jung hit him. Barnes turned toward
him, McGill picked up hi5 stick and as Barnes came toward him, Jung
and McGill hit Barnes on the lower part of the body.
arrived back and ordered Barnes
to stop and Barnes attacked
Thibert. Thibert hit Barnes in the leg area at
least twice and
again
a third time and he fell to the floor. Jung also indicated
that Barnes would not put his hands against the wall although he
Thibert-
was ordered to do so and was also ordered by Thibert to get on to
the floor.
(d) E; MCGiLL
The first statement given by this grievor was at
1:00 o"clock on the morning of the 28th and reads as follows:
"On Wednesday 27/05/81, at approximately
22:15 in corridor number 1, while Mr. Thibert
was handing a toothbrush to I/M Barnes, Barnes
grabbed and attempted to strike Mr. Thibert.
I/M Barnes was quickly restrained and handcuffed
and placed in
a Cell. No unnecessary force was
used.
One or two days after the incident and before May 31,
the grievor made a series of notes on an Occurrence Report form.
He indicates inter alia
"Inmate Burns was released from Cell. He
proceeded to washroom area. Mr. Thibert
handed him the toothbrush.
his wrist and attempted to strike Mr. Thibert.
When he grabbed Mr. Thibert, Mr. Jung yelled
'Look out!' At this point, I turned my head
towards Mr. Jung. When I turned back toward
Mr. Thibert, he and I/M Barnes were airborne,
they landed. Mr. Thibert and I/M struggled
to their feet. Mr. Thibert ran past me. I
thought at this time 'This big chicken-shit
here he's the biggest of the three of us, the
one with the experience and he was fucking off'.
I didn't know at the time this was standard
procedure. He went to the grill where Sargeant
McGinn handed him handcuffs and night sticks.
He returned to the scene. I/M Barnes kept coming
at us. At one point, I lost my stick and don't
really know how I lost it. I think I/M Barnes
kicked my stick, causing me to drop it. Mr.
Thibert kept ordering Barnes to the floor, but
he refused to
go down. He kept coming at us
and was not put down until Mr. Thibert came back,
(Barnes was screaming and fighting thrashing
about) to the scene and helped us (Mr. Jung and
myself) and restrained him. I/M Barnes was then
ordered to place his hands behind his back where
Mr. Thibert then handcuffed him. We then placed
him back into his Cell. When we came out of the
corridor, Mr. Thibert informed Sargeant McGinn
that I/M Barnes was cut somewhere in the head
Barnes grabbed
area. At no time did I see a blow to Barnes head.
At this time, Sargeant McGinn said. we will call
the police and have them dispatch an ambulance.
Two police Officers came to the jail, plus two
ambulance men
19
'On May 31, 1981, this grievor made a statement to
Inspector Leutz. He did not have the benefit of the notes
referred to above. He indicates inter alia
"AS Mr, Thibert handed Barnes his toothbrush,
Barnes grabbed his wrist and cocked his fist.
They weavered (sic) back into the washroom and Mr. Jung
yelled 'Look out'. They care flying out and both
Barnes and Thibert went down on the floor, Barnes
was restrained with the night sticks. He kept
trying
to get up and was hit on the legs. He was
hit at least 3 times by me in the legs, he kept
trying to get up and he was screaming, When he
was being restrained he was thrashing around the
floor trying to fight and get up on his feet. He
had told me, he was a martial arts person and I
wasn't taking any chances,"
On July 27, 1981, Mr. McGill gave a subsequent
statement to Inspector Leutz. He indicates in this statement
that on the night in question, Barnes
was in a "high state of
anxiety". He also indicates that as Mr, Thibert went running
past him
"AS he went past, Mr. Jung and I moved in to
restrain Barnes and somewhere in there I lost
my stick, I think Barnes kicked my stick, he
was thrashing and kicking in a fighting stance.
I turned to pick up the stick, I was going to
use my hands and feet but I decided it would
be better to get the stick and prevent him from
getting it. I picked the stick up and I heard
a 'Whack', I assumed Mr. Jung had started to
restrain Barnes already. I turned around and
struck Barnes
on the legs as I was coming up,
but it didn't appear to have any effect. By
that time, Mr. Thibert returned and was ordering
Barnes to the floor, Barnes didn't appear to
react to the order, refusing to go down and very
defiant. He was still advancing toward us. That's
when Mr. Thibert drove him in the legs I don't
know how many times."
20
He also indicated that he did not know whether Barnes
hit his head on the radiator and that Barnes was struck with the
sticks on the legs and upper torso "At no time did I see a stick
strike Barnes on the head". He also indicates that he, McGill,
has a second degree brown belt in karate and also taught the
subject in a club in Peterborough.
Barnes at least 3 times and that Barnes was cursing, screaming,
during the incident.
He does not think that Barnes could have hit his head on the
He estimated that he hit
Barnes did not crawl under the table.
table, but "anything is possible".
In his evidence at the hearing, McGill indicated that
Thibert held out his left hand with the toothbrush in it and said'
"here's your toothbrush". Barnes grabbed Thibert's left hand with
his right hand, cocked his left fist at which time Jung yelled
'Look
out'. When Thibert headed to the grill to get the cuffs and
the stick, Jung cross-checked him with the stick and "drove him off
the back wall". Barnes came back roaring toward him, McGill and the
next thing he knew, he lost his stick. He heard a 'Whack' and
Barnes turned toward Jung, he picked up his stick and hit Barnes
21
once or twice on the legs. He said
"I was trying not to hit too hard".
When Mr. Thibert returned, Barnes focused on him,
advanced
toward him, he was ordered to go down and "Cease the
foolishness". Thibert swung in a chopping motion and hit Barnes
twice and Barnes went down. The fight ended near the table. He
has no idea how the cuts on Mr. Barnes head occurred.
6. SUBSEQUENT TO THE INCIDENT
Barnes was taken to
by Mr. Gordon and Mr. Patton,
was examined in the Emergency
the hospital in an ambulance driven
accompanied by Mr. Thibert. He
Department at 11:15 p.m., and the
injuries
were described at the hearing as follows:
"He had fairly severe contusions in several areas
including a 3 inch scalp laceration which needed
stitches. He had a sore left hand with some new
bone formation which appeared on X-Ray, consistent
with a fracture of approximately 1 week. He had a
sore small finger on his left hand, his right
shoulder was very sore at the right front point.
The right forearm
was very sore. There was lots of
superficial bruising on the upper body and none on
the face. He had a very sore left lower leg in the
region of the ankle, although there was no obvious
injury. Most
of the injuries, with the exception
of the fractured left hand, appeared to be reasonably
fresh, consistent with having been made within the
previous few hours. There was some bruising on the
back upper thigh, but most bruising was on the front
and upper back. He got the feeling that Barnes was
somewhat overstating the severity of the injuries.
Dr. Graham indicated that the dark colour normally associated
with bruising can appear within a few minutes or it may take as
long as a couple of days to appear.
22'
The medical report prepared by Dr. Graham at the time
includes a reference to contusion on the left lower leg,
numerous contusions to the trunk and shoulders, abrasion on the
left elbow and under Nature
of Occurrence reads
attacked guard with sharpened 'toothbrush".
On May 28th, Mrs. K.N. Kartes, the jail nurse, was
called to look at Inmate Barnes. He was apparently having dizzy
spells and possible black-outs. She indicated that his hand
(left hand) was quite swollen to approximately twice the normal
size. She suggested cold compresses.
On May 29th, Barnes was transferred to Millbrook. At
the request of Superintendent Rundle, he was there examined by
Mrs. Lorraine K. Bell, a registered nurse at Millbrook. The
injuries were described in her report as follows:
"Left lower leg (calf) abrasions approximately
1 to 1½ long. Some swelling in left calf area.
.Measured 15%". Right calf 14½. Appears to have
difficulty standing and walking. Definite limp
left leg. Surgical scar left upper thigh; states
had muscle and cartilege surgery 10 months ago at
Hotel Dieu Hospital while incarcerated in Kingston
Penetentiary. Right lower leg nil. Right thigh,
two abrasions (upper posterial thigh) approximately
1½ long. Left thigh nil other than surgical thigh.
Right hand, fifth digit swollen and bruised. Unable
to extend or flex fully. Right forearm minimal
bruising and one small abrasion right
elbow. Right
bicep extensive bruising and one 1" superficial
abrasion and numerous scratches. Right shoulder
two redened (sic)- areas (size of 25¢ piece)-. Back one
bruised right shoulder blade. One 2" scratch left
shoulder blade, bruising left lower back, left hand
grossly swollen and discolored bruising apparent
movement of fingers limited. Left forearm nil, left
elbow abrasions size of 50¢ piece with dry dressing
and clean bandage in place, left bicep one 2½
abrasion, two 3" abrasions, one 1" abrasion.
23
Right jaw states painful but able' to chew.
Has full range of movement, scalp one 2"
laceration with 7 sutures in place. Hair
matted with dried blood.
While investigating the sutured wound on the head,
Mrs. Bell found a second laceration lower on the back of the
head.
On June 3, 1981, Inspector Raybould from the O.P.P.,
inspected the jail and certain samples and then went to Millbrook
and examined and interviewed Mr. Barnes. He described what he
found as follows:
"Barnes had evident elongated bruises on the exterior
side of .the both upper arms which were purple and
yellow. His left hand was in a cast. He had vivid
bruises on the rear portion of his legs immediately
below his buttocks. He had bruises on his left thigh
near an old scar.' He had abrasions on his lower left
leg below his knee at the front and left sides, He
had bruises on his left arm somewhat "V shaped.
There
were a series of parallel lines
on his biceps
area of the right outer arm. He had bruises on his
right finger. The parallel lines were similar to
those found on the riot sticks. There were no
abrasions
or discoloration on the knuckles of either
hand, On the back of his head were two deep
lacerations, one was 2¼ long and sutured, the other
was 1-3/4" long and had not been attended to. There
were small bruises elsewhere on his body. Pictures
of the Inmate Barnes were taken by Constable Moore
of the O.P.P. and entered in evidence at the hearing."
Inspector Raybould also gave evidence concerning his
findings
at the Lindsay Jail and entered a report (Exhibit 40)
from the Centre of Forensic Sciences, concerning samples taken.
He went there on June 3, 1931, as indicated with Identification
Sargeant J.H. Moore and P.C. Sinclair. He indicated that it was
evidently an old jail, but was very clean. There were several
minute stains (30) on the wall outside the bathroom door, as
well as some stains west of the table. There were some stains
24
below the table at the east end of the table and under the bench
and table. Some of the stains under the table were of the high
velocity type, indicating that they had been made by something
moving at high speed.'-' There
was a smear stain of blood on the
east leg of the bench, well up and out of sight. Corridor floor
itself was relatively clean. The radiator and pipes on the east
wall referred to earlier, needed both both painting and dusting.
He carefully checked these for traces of tissue, blood, hair or
fibres. None of these was found. Nil blood staining was found
on the
east wall in the area of the radiator.
The lab report which analyzed various samples taken by
Inspector Raybould, indicated that the blood from the east leg
of the table was of a grouping which could have come from either
Barnes or Brabant, or any one of up to 61% of the people in
Canada.
similar to that of Barnes or Brabant. The blood stain under the table
The stains on the west wall were blood but not of a type
of the high velocity type could have come from the same number of
people, including Barnes or Brabant. He could not tell how long
the blood had been in place. He found no blood on the batons or
elsewhere.
7. STANDARD OF REVIEW
The grievors were dismissed for using excessive force
on Inmate Barnes during the incident of May 27, 1981. As mentioned
earlier, some force is legitimate and some is not. We agree that
because the conduct here is alleged to have been criminal conduct,
the standard of proof which must be met by the employer is higher
25
than the ordinary civil standard. We feel that an allegation of
this sort should be Proven by clear and convincing evidence.
With respect to the question of whether the Standard
of Review should be different in the case of each of the grievors,
particularly in the case of Mr. McGill who was in the unclassified
service and could have been terminated with one week's pay in lieu
of notice, we feel that since the hearing was conducted on the basis
that the employer wished to show just cause for dismissal in each
of their cases, the just cause requirement should applyequally to
all three of them.
8. DECISION
There are a considerable number of questions left by the
evidence.
It should be clear that the versions of the evidence
given by the different witnesses differ, the
one from the other,
and indeed, the versions of incident given by the same witnesses
often differ. It is true that many of the early statements given
were sketchy, and that later ones were taken by Inspector Leutz
asking questions and not seeking volunteered information. It
would be unusual, and perhaps damning if all statements of all
parties agreed in all aspects, the one with the other.
there are some significant differences between some of the versions
Nonetheless
of the incident.
head injuries, dealt with specifically
infra there are a few
troubling aspects of the statements and evidence.
In addition to the question of the cause of the
On the issue of whether Mr. McGill lost his riot stick,
no reference appears in the material from Mr. Thibert to that
occurrence, McGill deals with it in his notes made prior to May
31. Mr. McGinn and Mr. Jung just refer to it on July 29 and 27,
respectively. One might have expected some uniformity on this
issue, being an unusually crucial occurrence.
On the question of whether Mr. Barnes got up immediately
after falling with Mr. Thibert, Mr. Jung and others, Including Mr.
McGill prior to May 31 indicated that he did. Strangely Mr. McGill
in his May 31 statement seems to suggest that Barnes never got up.
On the question
of what Barnes was being ordered to do,
most witnesses agreed that he was being ordered by Mr. Thibert to
set on the floor. Mr. Jung on the other hand made reference to
Mr. Thibert telling Barnes a ‘few times’ to put his hands against
the wall. He later added in oral evidence that he was also being
told to get on the floor.
Because of the different versions of what happened, it
is necessary to look at such things as evidence independent of the
grievors and
of Mr. Barnes, as well as evidence of conduct and
statements
of the grievors subsequent to the event.
(a)
prepared by any of the grievors?
why were no Accident and Injury Reports or Misconduct Reports
As mentioned earlier, the three grievors filed Occurrence
Reports which were similar in brevity and indeed, in two cases, in
language. They did not
refer to the use of riot sticks nor do
26
they refer to the fact that Barnes was injured and had to be
taken
to the hospital. Various explanations were offered for
this unusual fact. Mr. Thibert indicated that he assumed there
would be an investigation and further reports would be forthcoming.
He also indicated that he was tired and under pressure and may
have forgotten about the trip to the hospital. He assumed that the fa
that the inmate had been injured would be included in hospital reports
Despite the fact that the instructions at the institution seemed
to be that reports should be kept simple and short, we are concerned
about the extreme brevity of these reports and the obvious ommisions
from them. In the case of Mr. McGiil, he had only worked 9 shifts
prior to May 27th and had
not filled out an Occurrence Report and
thus there is some explanation for the brevity of his report. In
the
case of Mr. Jung, he did not think that the use of batons
during the incident
was significant and had no explanation why the
injury to Barnes was not mentioned.
With respect
to the failure to file Accident and Injury
Reports as required by the above mentioned Regulations, no
satisfactory explanation was offered at the hearing.
With respect
to failure to file a Misconduct Report
dealing with the incident, both Mr. Jung and Mr. McGill indicated
that the responsibility for filing that report would have been that
of Mr. Thibert. As Mr Thibert pointed out, there would not have
been much utility in filing a Misconduct Report concerning this
incident because the normal sanctions ranging from loss of
privileges to segregation were not available in the case of
27
Barnes who was already subject to them. In addition, Barnes
had .been charged with assault as a result of the incident on
May 24th
penitentiary for that incident. The same explanation was offered
by Mr. Thibert and others with respect to the failure to charge
Barnes with assault for the incident. As Mr. Thibert indicated,
and subsequently received approximately 4 years in the
there did not seem to be much point in it because he would have
in all probability received time concurrent with whatever time
he would have gotten for the incident of May 24th.
we thus do not put particular weight on the absence
of an assault charge against Barnes or the failure to file a
Misconduct Report, but we are concerned that the brevity of the
Occurrence Reports and the failure to file an Accident and Injury
Report indicate,
to some extent, at least an attempt to minimize
the severity of the incident,
(b) How did the. head injuries occur to Barnes?
None of the witnesses who saw the incident, McGinn,
McGill, Jung or Thibert, testified that they saw Mr. Barnes hit
on the head with the riot sticks. Indeed, several of them
expressly indicated that this did not occur.
that Barnes suffered two cuts to his head of approximately 2" in
length, one of which was closed with a number of stitches. It was
suggested by Mr. Ryder that the second cut which was not found
until Barnes arrived at Millbrook may have been self inflicted.
This is mere conjecture and we dismiss the suggestion. The
The fact remains
28
evidence given above concerning the incident has Barnes at various
times hitting a wall, a radiator, a table, and a bench. (See below).
The evidence of Dr. W. J. Horsey indicates
"The scalp lacerations could be due to a blow
with a truncheon, especially the one that is
sutured. They are more characteristic of an
injury occurred falling against a sharp edge,
especially the one sutured".
This evidence, although helpful, is not particularly enlightening.
The evidence
of Inspector Raybould bears on this matter.
With respect to the question of whether or not Barnes hit h'is
head on the wall, the only evidence about blood on the relevant
wall, the east wall, was that of spattering. There were no samples
of tissue or hair on the wall and it is reasonable to conclude
from this that Barnes did not hit his head on the east wall. Thus,
if he was cross-checked by Mr. Jung into that wall, the injuries
did not occur at that time.
The only other time that the injury could have occurred
other than by virtue of being caused by a riot stick, was when
Mr. Thibert and Mr. Barnes fell to the floor at the beginning of
the incident. Depending on the witnesses who gave evidence
concerning the matter, Barnes may have either hit his head on
the table, the bench or the radiator
or indeed, the floor. Mr.
McGinn gave evidence that Mr. Barnes 'fell against the radiator'
(Occurrence Report)
either the radiator or the pipes' (July 29) and 'fell back in
the general area of the radiator'
'struck head in the area of the east mall,
(Oral evidence).
Mr. Thibert's evidence was that Mr. Barnes 'fell to
the floor' (Occurrence Report), 'hit table' (May 31) and 'assumed
he hit his head on the radiator' (Oral evidence).
Mr. Jung did not see him hit his head on the radiator
Mr. McGill didn't know whether he hit the radiator
and didn’t think he hit his head on the table.
Given this conflicting evidence on what is an important
point, the evidence of Inspector Raybould seems significant.
His evidence clearly dismisses the radiator as a
possibility because no evidence was found on those parts of the
radiator which could have caused the injury. With
respect to the
question of whether or not the two injuries could have been caused
by hitting the table or bench, no evidence of such having occurred
was found on the table or bench edges. In addition, there was
only evidence concerning one fall and there was clearly evidence
of two injuries.
As a result, the only reasonable conclusion open on
the evidence is that Barnes was hit on the head at least twice
by the riot sticks. Against this, the express disclaimer of
the grievors is of some significance as is their conflicting
evidence on the point,
(c) Did Barnes attack Mr. Thibert?
One explanation
of the incident is that Barnes, being
an irrational person subject to massive mood shifts and being a
violent man, took advantage of the opportunity to attack the
guards. Indeed, the later versions of the event given by the
grievors seemed to be reasonably consistent in the suggestion
that Barnes grabbed Thihert's left arm with his right hand and
aimed
a punch at Thibert with his (Barnes) left hand. We have
some difficulty with this. In the first place, although Barnes
caused trouble on April 17th and April 20th, as well as may 24th,
29
the only time he used violence was on the 24th when he 'was in a
oner on one situation and in fact came up behind Blackmore. He
is clearly a man capable of extreme violence, but we did not
get the impression of him at the hearing that he would act irration-
ally.
riot sticks as well as Mr. Thibert at the same time in a locked
corridor in which those
five were the only persons present would
be the height of folly.
It strikes us that for him to take on two guards armed with
This would be particularly so given that
his colleague, Brabant, had gone to the hospital the day before as a
result of an incident when he was isolated with a number of guards.
The other factor which makes the suggestion that
Barnes-attacked the guards unlikely is that he had in fact
broken his left hand on the 24th or at some time between the
24th and the 27th. This hand had been giving him trouble and
it strikes us as unlikely that he would use this hand to hit
out
at Mr. Thibert. In other words, why would he hit out with
a broken left hand? How the incident started, we are unable to
decide. Did the guards, primed for trouble, misinterpret some
gesture of Mr. Barnes? We will never know.
(d) Was there a conspiracy on the part of the guards to beat
up Barnes?
It was suggested at the hearing that because of the
incident on the 24th, a conspiracy existed among the guards to
get both Brabant and Barnes. It was suggested that Brabant
received his punishment on the 26th and that Barnes received his
on the 27th. Other than the fact that the incidents did in fact
occur in that order, there is no other evidence of such a
conspiracy.
McGill was in accordance with the Information Log which they were
The carrying of sticks in the corridor by Jung and
both aware of, placed there on May 25th. The three grievors did
not apparently remove their glasses or such articles as pens and
pencils from their pockets or watches from their wrists, something
which they might well have done if they planned to administer a
beating. Thus, we are not prepared to say on this evidence that
there vas a conspiracy to beat up Barnes.
(e) Do the injuries other than those to the head raise a doubt
as to whether force was excessive?
It is unclear from the evidence that was given by the
witnesses to the incident how many times Barnes was hit by the
riot sticks. Estimates vary from the low of 6 to a high of about
15. It is significant that most of the injuries were to the
exposed arms and shoulders and
to the lower legs. The fact that
more serious injuries did not occur is attributable, we feel, to
the fact that Barnes had on the baby-dolls which were heavily
padded and which prevented more serious injuries
from occurring.
Thus the fact that more
serious injury did not occur does not
raise a doubt.
(f) Some other questions.
We have tried to untangle the tangled web of evidence
to see if one definitive version of the incident emerges. Such
a version does not emerge from the evidence of the four people
other than Mr. Barnes who witnessed the incident. What emerges
is a confusing and conflicting version of what happened. Even
though it occurred quickly we might have expected a bit more
similarity between versions offered by the parties.
the evidence
we are satisfied that there is clear and credible
evidence that excessive
force was used. Ne are particularly
influenced in this conclusion by the head wounds and by the
presence
of blood stains on the legs of the bench and under the
table. No rational explanation is open on the evidence that these
were put there by anyone .other than Mr. Barnes. To that extent
at least they confirm his version. Leaving his evidence aside
Taking all
totally, however, the evidence of his injuries, taken with the
conflicting stories, the disclairers, as to hitting his head,
32
the absence of full reports filed by those responsible, the
unlikelihood of Barnes attacking Mr. Thibert in the circum-
stances set out above, leave us with no reasonable doubt that
the grievors used excessive force on Barnes. We reach this
conclusion only with great reluctance, particularly in the
case of Mr. Thibert, given his long unblemished record with
the Ministry.
(g) Is this a situation in which Section 19(3) of CECBA should
be invoked?
In many ways, one can sympathize with the actions.
taken by the grievors. The institution was in a' state of high
tension following the incident of May 24th and they must have
been terribly upset about what happened to their fellow guards
at that time. In addition, Barnes had been a source of trouble
in the sense
of being a highly demanding prisoner who caused
physical damage to the institution and who obviously
33
held no respect for guards. It was perhaps understandable,
if not acceptable, that they took out their frustrations on
him on the 27th.
Much of the blame for what happened must rest on the
superiors in the institution. If the three guards had not
been armed with riot sticks, they could no doubt have control-
led the situation considerably better by merely crowding
Barnes against the wall and immobilizing him. Added to this
is the fact that none of the guards had any skill in the use
of such sticks and should not have been using them in close
combat. Added to this is the fact that Mr. McGill had only
served 9 shifts and was faced with a highly dangerous inmate!
If the supervisor, Mr. McGinn had intervened verbally the
incident might have ended more quickly. Thus the
blame can
be laid, in part at least, at the feet of management.
This case is unlike the case of Van't Hullenaar
555/81 in which no actual bodily harm was done by the grievors
and in which they themselves owned up to their defaults. Because
the injuries to Barnes were reasonably serious and might have
been more
serious but for the presence of the baby-dolls and
for the fact that the incident took place in a confined space,
34
we do not feel inclined to mitigate the penalty as provided
for under Section 19. Thus the grievances are dismissed.
DATED at London this 6th day of April, 1982
Barton
P. G. Barton Vice-Chairman
D. B. Middleton Member
"I dissent" (Dissent to follow)
F. D. Collom Member