HomeMy WebLinkAbout1983-0113.Dvorak et al.84-11-27180 DUNOAS STREET WEST. TORONTO. ONTARIO. M5G lZ8 - SUITE 2100 TELEPHONE:
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IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Be tween: OPSEU (A1 lan Dvorak, et a1 . )
Grievors
- and -
The Crown in Right of Ontario
(Ministry of Correctional Servi ces)
Employer
Before: M.K. Saltman - Vice-Chai rman
W. Walsh - Member
B. Lanigan - Member
For the - Grievors: P. J.J. Cavalluzzo, Counsel
Cavalluzzo, Hayes & Lennon
Barristers & Solicitors
For the Employer: D.W. Brown, Q.C.
Crown Law Office Civil
Ministry of the Attorney General
Hearings : - Apri 1 28, 1983
July 7, 1983
July 11, 1983
July 14, 1983
August 30, 1983
August 31, 1983
September 1, 1983
September 28, 1983
This case arises out of the dismissal of four Correctional
Officers at the Toronto East Detention Centre. The circumstances of
the dismissals are set forth as follows in a decision of the Board
dated August 16, 1984: o
I I The Grievors in the instant case, A1 lan Dvorak,
William Bradley, Michael McKinnon and Robert Moreau, were
employed as Correctional Officers at the Toronto East
Detention Centre. On December 7, 1982, an inmate of the
Toronto East Detention Centre sustained serious injury as
the result of an alleged assault by Correctional Officers.*
As a result of this incident, the Employer conducted an
investigation under Section 22 of the Ministry of
Correctional Services Act, R.S.O. 1980, c. 275, which reads
as follows:
'22. The Minister may designate any person as an
inspector to make such inspection or investiuation
as the Minister may require in connection with the
administration of this Act, and the Minister may
and has just cause to dismiss any employee of the
Ministry who obstructs an inspection or
investigation or withholds, destroys, conceals or
refuses to furnish any information or thing
required by an inspector for the purposes of the
inspection or investigation.
'
As a result of the investigation, six Correctional
Officers, who were implicated in the assault, were
dismissed. The four Grievors, who were not implicated in
the assault, were suspended pendi ng investigation and
ultimately dismissed for breach of their trust as
Correctional Officers and for violation of Section 22.
More particularly, Mess rs
. Dvorak, McKi nnon and Moreau,
all of whom were Union Officers, were dismissed for obstruc-
tion of the Ministry's investigation conducted pursuant to
Section 22.
Mr. Bradley, who was not a Union Officer, was
dismissed for withholding information from the investigation.
Each of the Gri evors filed two grievances, one against
indefinite suspension and one against dismissal. The eight
grievances were referred to this Board for determination. At
the request of the Union, the Board ordered that these
grievances be consol idated and heard together.
* Six Correctional Officers were dismissed for the assault.
The grievances of those Officers were dealt with by
another panel of the Board: see Bedeau et al. (52/83,
54/83, 57/83, 55/03, 112/83, 114/83, 116/83, 118/83, 53/83,
56/83, 117/83, 119/83) ." (ttie "Bedeau" case)
At the outset of the hearings, the Employer objected to the
Board's jurisdiction to review the dismissals as the Grievors were dis-
missed pursuant to Section 22 of the Ministry of Correctional Services
Act. The Board heard argument on the objection at a hearing on April
28, 1983 and reserved its decision. On June 30, 1983, the Board issued
its decision dismissing the preliminary objection with reasons to follow.
Subsequently, the Board proceeded to hear evidence and argument for seven
days on the merits of the grievances. In addition, by agreement of the
parties, the Board received approximately 600 pages from the transcript
of the evidence in the Bedeau case. On December 12, 1983, the Board*
issued its decision reinstating the Grievors with reasons and terms of the
reinstatements to follow. Those matters are dealt with in this decision.
The Toronto East Detention Centre is a facility for the
detention of inmates awaiting trial or transfer to another institution.
The Detention Centre, which was designed to hold 340 inmates and is
often filled beyond capacity with over 400 inmates, consists of five
floors, three of which are devoted solely to the incarceration of
inmates. Each of the three floors is divided into three units, which
are referred to as "A", "B" and "C" with the appropriate floor number.
There are generally two Correctional Officers assigned to each unit.
Assignments are made at the start of each shift for the duration of the
shift.
The allegations against the Grievors arise out of an
incident which took place on December 7, 1982 on the 5C West unit,
which is located at the west end of the 5th floor. On December 7th,
* Subsequent to the hearing on the preliminary objection, the parties
agreed to substitute Ms. Lanigan as the Board Member in place of
Mr. Reistetter to adjudicate upon the merits of the dispute.
Dorianne Tennant and Billy Tucker were the Correctional Officers
assigned to the 5C unit, which is divided into two distinct areas:
5C West and 5C East. In December, 1982, there were approximately 19
inmates incarcerated in ten cells on the 5C West unit. When the
inmates are not in their cells, they are in a "day room", which is a
communal area immediately adjacent to the cells. The day room is a
large open area with benches and tables and a television set. At the
southeast end of the day room is a communal shower. On the south
wall of the day room to the west of the shower is a door leading to
the corridor. The door is required to be locked at all times and the
key is in the possession of the two Correctional Officers assigned to
the 5C West unit. The door has a wire grille through which most of the
day room can be viewed. When one Officer enters the unit for any
reason whatsoever, the other Officer assigned to the unit remains
outside the unit at the grille door to observe whatever happens within
the unit. If the unit Officers require assistance, the Officer
waiting outside at the grille door pushes a buzzer which is affixed to
the wall beside the grille. When depressed, the buzzer sounds an
alarm which registers in Central Control and is transmitted over the
public address system as an emergency "code" which is identified with
the respective floor. For instance, a code on the 5th floor is
identified as "Code 5", which is a direction to Officers throuqhout the
institution to respond to an emergency on the 5th floor. (Although
there was some dispute as to the appropriate number of Offjeers who
were required to respond on a code, it is unnecessary'to determine that
issue for the purposes of this case.)
It is generally agreed that the inmates on the 5th floor
were "heavy duty", which is a reference to their propensity for
violence. Violence of a most reprehensible nature in fact occurred on
the 5C West unit on the afternoon of December 7, 1982.
Shortly after 1 :30 p.m. on December 7th, Mr. Tucker and Ms.
Tennant, who were doing some paper work in the Supervisor's Office
between the 5C West and 5C East units, became aware of a commotion on
the 5C West unit. Mr. Tucker proceeded to investigate. Through the
grille, Mr. Tucker saw two inmates engaged in an altercation on the
floor between cells 6 and 7 at the north end of the day room. Mr.
Tucker yelled to the inmates to stop fighting but the admonition was
ignored. Ms. Tennant, who fol lowed almost immediately, repeated the
admonition with a similar result. Meanwhile, a crowd of inmates had
pathered around the protagonists. Officers Tucker and Tennant ordered
the crowd to disperse but the order was ignored. In view of the
volatility of the situation, which was described in evidence as
"near riotous" and the "worst ever" experienced at the Toronto East
Detention Centre, Ms. Tennant pushed the code button to summon help.
The public address system announced "Code 5", indicating that
assistance was required on the 5th floor.
The first Officer to respond to the code was Eric Proctor.
When Mr. Proctor arrived on the scene, he accompanied Mr. Tucker into
the day room in order to break up the fight. Ms. Tennant waited outside
at the grille door. When the Officers came upon them, Inmate Stalteri
was on his knees, being struck repeatedly by Inmate Baxter. Mr.
Tucker restrained Inmate Baxter while Mr. Proctor restrained Inmate
Stal teri . Notwi thstanding the restraint, Inmate Baxter continued to
assault Inmate Stal teri.
From this point on, the evidence is fraught with contradic-
tion.
It is not necessary for the purposes of this case to resolve
all of the contradictions with respect to the assault, which has
been ably done by another panel of the Board: see Bedeau et
al., supra. However,
it is necessary to review the evidence in some
detail in order to understand the allegations against the Grievors
dnd in order to assess the credibi 1it.v of various witnesses.
The evidence indicates that Mr. Proctor attempted to brincj
Inmate Stalteri out of the day room while restraining him in a head
lock from behind. As
Mr. Proctor was proceeding toward the grille
door, he was suddenly confronted by a group of Officers coming through
the grille door. Although the entire group could not be identified, it
would appear that Officers Davidson, Fitzwilliam and Gaston were among
them, and that some or all of these Officers, including Officer Davidson,
took hold of the Inmate in order to assist
Mr. Proctor in removing him
from the day room. Mr. Davidson, in particular, grabbed the Inmate by
the collar and began pulling him in the direction of the grille door.
According to Mr. Davidson, when t~e took hold of him, the Inmate was
being restrained by both Messrs. Proctor and Bradley (although
Mr.
Proctor was not aware of Mr. Bradley's presence and Mr. Bradley himself
claimed that he was prevented from entering the day room by the crush
of Officers escorting the Inmate through the grille door).
On Mr. Proctor's version of the evidence, before reaching
the gri 1 le door, Inmate Stal teri was struck several blows, apparently
by Correctional Officers. Mr. Proctor was the only witness, apart
from the Inmate himself, who testified that the Inmate was assaulted
while still in the day room.
The bulk of the evidence describes an assault in the corridor
outside the day room. According to Mr. Davidson, the Officers
escorting the Inmate, having passed through the grille door, turned
left and proceeded eastbound along the corridor where they encountered
a group of Officers coming from the opposite direction who assaulted
the Inmate some five feet from the grille door in full view of the
inmates inside the day room. Mr. Proctor's evidence was consistent,
a1 though less detailed (Mr. Davidson somewhat incredibly gave a
detailed description of the precise number of blows and kicks inflicted
on the Inmate), and described what was in essence two assaults on the
Inmate in the corridor. The first took place between the Supervisor's
Office and the 5C East door where, according to Mr. Proctor, the Inmate
was kicked and struck and pulled by the hair. (This evidence is con-
sistent with the evidence of Officer Lonsdale who admitted to grabbing
the Inmate by the hair although in a different location to that men-
tioned by Mr. Proctor. According to Officer Lonsdale, he grabbed the
Inmate by the hair in order to assist in his removal through the grille
door. At this point, Officer Lonsdale claimed that he lost his grip on
the Inmate and was thrown against the back wall of the corridor.
Accordingly, he did not form part of the group of Officers escorting
the Inmate along the corridor. Mr. Bradley, for his part, admitted to
joining the escorting group, which numbered between four and six
Correctional Officers, just outside the grille door.) As they
continued eastbound along the corridor, the Inmate was struck a blow
to the left side of his face. As a result of this blow, the Inmate
appeared to go limp and fell or was dropped to the floor in the vicinity
of the 5C East door, where he was left by the escorting Officers (with
the exception of Mr. Bradley) who ran back to the 5C West unit to assist
with the disturbance. Included among the Officers who returned to the
5C West unit were Messrs. Proctor and Davidson.
Meanwhile, once the Inmate had been removed from the 5C West
unit, Lieutenant Simpson and Corporal Parish, who were among the last
group of Officers to respond to the code, assisted Officer Tennant in
closing the grille door against the crush of inmates who were rushing
the door. Notwithstanding their containment, the inmates remained
extremely hostile. After viewing the situation from the vantage
point of the grille door, Lieutenant Simpson and Corporal Parish
decided to enter the unit to quell the disturbance. After some amount
of persuasion and a considerable show of force, the inmates were
eventually quietened down and locked in their cells.
Shortly thereafter, Lieutenant Simpson was summoned to the
corridor were he found Inmate Stalteri lying in a pool of blood and
breathing laboriously. When Lieutenant Simpson came upon him, the
Inmate was being attended by two Nurses from the infirmary. Also in
attendance were two officials of the Ministry, who happened to be in
the institution when the code was announced on the 5C West unit;
Assistant Superintendent, Mr. Lochead; and several Correctional
Officers, including Officer Bradley. Officer Bradley said that prior
to summoning assistance, he turned the Inmate on his side to prevent
him from choking, although according to one witness, this precaution
was taken by Mr. Lochead. In the Board's view, nothing turns on
this discrepancy. In any event, it is clear that it was.Mr. Bradley
who summoned the INurse. Two Nurses in fact responded to the page.
With the assistance of Officer BI-adley, Lieutenant Simpson, Corporal
Parish and others, the Inmate was transported in a wheelchair to the
infirmary where arrangements were made for him to be escorted to
hospital .
Once an escort had been arranged, Lieutenant Simpson returned
to the 5C West unit to investigate the source of the inmate hostility.
He unlocked the cells and spoke to the inmates in the day room, He
also received a petition, prepared by one of the inmates and signed by
sixteen others, identifying an Officer fi tt-ing the description of Mr.
Davidson as the main assailant. Mr. Simpson presented the petition on
behalf of the inmates to the Superintendent of the Toronto East
Detention Centre, Mr. Dunbar, to whom he reported the assault. Mr.
Dunbar perused the petition and requested a written report from
Lieutenant Simpson and from each of the Officers involved in the code.
Subsequently, Mr. Dunbar contacted the Investigations Branch of the
Ministry of Correctional Services to request that an investigation be
carried out. Inspector Clair McMaster was assigned to conduct the
investigation commencing the following day.
Meanwhile, once the disturbance had been quelled on the 5C
West Unit, Messrs. Proctor and Davidson returned to their respective
units for the balance of the shift. Mr. Proctor claimed that some time
prior to the end of the shift, he received a telephone call from an
unidentified caller admonishing him to "stand solid or else", which he
understood to be a direction to maintain silence about the assault in
accordance with an unwritten code of silence among Correctional Officers.
Mr. Proctor never mentioned this alleged telephone call to anyone. In
any event, prior to the completion of his shift, at the request of
Lieutenant Simpson, Mr. Proctor made cut an "occurrence report",
which is a report made by a Correctional Officer of any unusual
occurrence in the course of the shift.
Although all of the Officers who responded to the code were
required to file occurrence reports prior to the end of the shift, it
would appear that occurrence reports were filed by only some of the
Officers and that not all of these were filed by the end of the shift.
Furthermore, when an inmate engages in misconduct (such as a fight),
it is incumbent on the Unit Officers to file a "misconduct report" (or
"charge sheet", as it is commonly referred to) setting out misconduct
charges against the inmate. 'The charges are then investigated and
referred to the Superintendent or his designee who conducts a hearing
forthwith to determine whether or not the charges a.re warranted. If
- so, discipline is assessed against the inmate. Although there is a
requirement that charges be laid when inmates engage in a fight, no
charges were laid against the protagonists in the instant case, Inmates
Baxter arid Stalteri. Furthermore, in accordance with alleged
intimidation, Mr. Proctor's occurrence report was incomplete and
omitted reference to the assault on Inmate Stalteri by Correctional
Officers.
Although there was no allegation of intimidation, Mr.
Davi dson a1 so submitted an incomplete occurrence report which omitted
.. - both a description of the Inmate's injuries and the identity of the
assailants. Mr. Davidson attempted to justify the omission on the grounds
that the Union would have access to the report and would, therefore,
know if he had implicated anyone. However, Mr. Davidson changed his
mind about implicating his fellow Officers when later in .the shift he
was advised by Officer Ron Worrell that he was going to be "set up"
by the inmates and that the Officers were not "with him on this one".
(Officer Worrell denied that he had any conversation with Mr. Davidson.)
The implication, as Mr. Davidson understood it, was that he would be iden-
tified by the inmates as the assailant and that he could expect no support
from the Officers. (Mr. Davidson was in fact implicated by the inmates
as the assailant, which he attributed to a "conspiracy" between the
inmates and the Officers.) Mr. Davidson felt, in view of the
severity of the assault, that there would be a scapegoat among the
Correctional Officers and that he would be chosen since he was not
well-liked. Mr. Davidson said that he decided to identify the
assailants in order to avoid being scapegoated.
Mr. Davidson did not advise anyone of his intention to implicate
the assailants, even though he spent four to five hours that evening
discussing the code with Mr. Proctor. Apparently, Mr. Proctor did
most of the talking and, in course of conversation, identified six
Officers as the assailants of Inmate Stalteri. Although he was
generally rather ci rcumspect, according to Mr. Proctor, Mr. Davidson
made a number of suggestions as to what had taken place during the
code. He also said that it was .important to discredit Ms. Tennant
(who was standing at the grille door and, therefore, would have been
in a position to have seen the assault) since Ms. Tennant was going
to "set up", i-e. implicate Mr. Proctor. (At no time did Mr.
Davidson give any indication that he also was going to be set up.)
Although Mr. Davidson said that he could not recall making this
statement, after vigorous cross-examination, he did not categorical ly
deny it. In any event, the Board finds that this statement was made.
In accordance wi th his earlier resolve, Mr. Davi dson
requested an interview, which was granted, wi th Superintendent Dunbar
at approximately 7:30 a.m. the next morning. Mr. Davidson told the
Superintendent that he understood he would be implicated in the
assault on Inmate Stalteri and offered to identify the assailants.
At the time Mr. Davidson made the offer, he was aware that he had
been implicated by the inmates. Mr. Davidson in fact identified six
assailants of Inmate Stal teri . Mr. Dunbar instructed Mr. Davidson
to make this information available to Inspector McMaster o-F the
Investigations Branch.
Inspector McMas ter comnienced his investigation by conferring
with
Mr. Dunbar shortly after 9:00 a.m. on December 8th. After
reviewing the occurrence reports which had been submitted, Inspector
McMaster recommended that the matter be referred to the Crown Attorney.
In accordance with this recommendation, Mr. Dunbar contacted the Crown
Attorney's Office. Subsequently, two Police Officers were dispatched
from the Criminal Investigations Branch of the Metropolitan Toronto
Police Department to conduct their own investigation.
Meanwhi ley after leaving Mr. Dunbar's office, Mr. Davidson
attended morning "parade", which is a gathering of Correctional
Officers where daily assignments are given out and announcements
made prior to the start of the shift. On this particular occasion,
Lieutenant Simpson informed the Officers that an investigation would
be conducted into the assault on Inmate Stal teri by the Investigations
Branch and that all of the Officers who had responded to the code on
the 5C West unit would be interviewed.
Mr. Dvorak was not on duty on December 7th. He first became
aware of the code when he reported for duty on the day shift on
December 8th. According to Mr. Dvorak's evidence, prior to the start
of the day shift, several Officers approached him to discuss the code
and to complain that the Ministry was not supporting them. According to
Mr. Dvorak, these officers (who were never identified to the Board)
favoured an illegal walkout to press their claim for support and said
that they would refuse to cooperate with an investigation. Mr. Dvorak
said that he advised the Officers not to "interrupt or impede" the
investigation and that under no circumstances would he sanction an
illegal walkout.
In view of the dissension among the Officers, Mr. Dvorak
said that he sought the assistance of Robert Moreau and Michael
McKinnon, Chief Steward and Union Secretary, respectively. A1 though
it was a day off for him, Mr. Moreau agreed to report to the
institution immediately. Mr. McKi nnon, who was scheduled to work later
in the day, was unable to report immediately. While Mr. Dvorak waited
for Mr. Moreau, he became aware of the inmate petition implicating Mr.
Davidson. When Mr. Moreau arrived, Mr. Dvorak explained briefly the
circumstances surrounding the code and the reaction of the Officers
and asked for his assistance in quashing any discussion of an
illegal walkout. Mr. Dvorak arranged to meet Mr. Moreau at the
elevators after parade.
Mr. Dvorak intended to address the Officers as they boarded
the elevators after parade to take up their assigned posts. However,
the first elevator had already left with a group of Officers and the
doors on the second elevator were about to close when Mr. Dvorak
arrived. He held the doors ajar and addressed the Officers. There
was considerable dispute about the subject-matter of his address.
However, there was no dispute that he informed the Officers of their
right to Union representation in the course of the investigation and
that he implored them to "stay solid" and "keep cool". At the
hearing, Mr. Dvorak attempted to explain the use of the word "solid",
which he said referred to a "solid team of professionals which
protects each other's interests in case of trouble". He emphatically
denied that this was intended as an instruction to withhold information
about the assault. According to Mr. Dvorak, he was merely instructing
the Officers to stay united and to avoid any "irrational action",
which he said was a reference to an illegal walkout. According to
Mr. Proctor, who was on the elevator, Mr. Dvorak also said: "We don't
need a 'rat' on this one", which was apparently a reference to an
informer. Mr. Dvorak emphatically denied this statement, which was
not corroborated by any of the other Officers who were on the elevator.
Mr. Moreau's evidence was consistent with Mr. Dvorak's.
According to Mr. Moreau, Mr. Dvorak informed the Officers that an
investigation would be conducted and admonished them to "stay solid" and
"remain cool" and not to do "anything foolish". He also advised them
to cooperate with the investigation, to answer the Inspector's questions
and not to interfere with the investigation. Finally, he advised the
Officers of their right to Union representation during the investigation.
Mr. Moreau denied hearing Mr. Dvorak say: "We don't need a rat on this
one."
After addressing the Officers at the elevators, Mr. Dvorak
met with Messrs. Moreau, Gordon and Patrick, all of whom were Union
Stewards, to request that they make themselves available to any
Officer requiring Union representation during the investigation. He
told them, in accordance with an agreement with the Ministry, that
they were entitled to be present as observers only and could in no
way "impede, interfere with or obstruct" the investigation. He also
asked for their assistance in quelling rumors of an illegal walkout.
Mr. Proctor said that he felt pressured to take a Union
Steward into the Ministry's investigation and, moreover, to maintain
silence as to what happened on the 5C West unit. Others, including
Mr. Davidson, evidently did not feel the same pressure since they
attended the interview with Inspector McMaster wi thout Union
representation. In any event, Mr. Davidson wished to avoid taking in
a Union Steward as he intended to implicate six of his fellow Officers
in the assault on Inmate Stalteri, which he did in an interview with
Inspector McMaster on December 8th. Inspector McMaster took notes of
the meeting and prepared a statement for Mr. Davidson's signature.
Mr. Davidson signed the prepared statement and attested to the truth
of
i ts con tents.
Mr. Proctor also met with Inspector McMaster on December 8th.
On Mr. Proctor's version of the evidence, Mr. McKinnon approached him
on the way to the meeting and inquired whether he had Union representation.
Mr. Proctor said that he had arranged for Robert Gordon to represent him,
which appeared to satisfy Mr. McKinnon. Subsequently, however, Mr.
Gordon was excluded from the interview by the Inspector on the grounds
that he was "too involved" in the case. (Mr. Gordon was one of the
Officers who was implicated in the assault.) Once Mr. Gordon was
excl uded, Mr. Proctor attempted to find another Union representative and
ul timately requested representation from 1Yr. McKinnon.
The Union version was diametrically opposed. According to
Mr. Dvorak, Mr. Proctor approached him on December 8th requesting
Union representation. Mr. Dvorak directed him to Mr. McKinnon who
was handling the matter. According to Mr. McKinnon, Mr. Proctor
approached him to request Union representation and not the other way
around as Mr. Proctor claimed. On this version of the evidence, Mr.
Proctor was very nervous and asked if Mr. McKinnon would represent
him in the interview with the Ministry Inspectors.
Mr. McKinnon said
that he agreed to represent Mr. Proctor even though the evidence
would indicate that Mr. Proctor had previously made arrangements
to be represented by
Mr. Gordon. In view of the undisputed fact
that Mr. Proctor had already arranged for Union representation, it
seems improbable that he would also request Union representation from Mr.
McKinnon. Accordingly, Mr. Proctor's version of the encounter with Mr.
McKinnon must be preferred. Nevertheless, it should be noted, on
either version, that Mr. Proctor asked for Union representation and,
even more significant for his claim of "coercion", that he specifically
requested representation from
Mr. McKinnon when Mr. Gordon was dis-
qualified by the Inspector.
1 - Mr. McKinnon was permitted to attend the interview as an
observer only and was not permitted to offer advice. According
to Mr. Proctor, when he arrived in the interview, Mr. McKinnon sat down
very close to him. As the interview progressed, he moved closer and
placed his foot against Mr. Proctor's. Whenever he wanted to call
attention to something Mr. Proctor was saying, Mr. McKinnon would tap
against Mr. Proctor's foot or make a "thumbs up" or "thumbs down"
gesture indicating approval or disapproval. In addition, Mr. McKinnon
took out a pen and paper, which he cupped in his hand, and took notes
-.
of what Mr. Proctor was saying. According to Mr. Proctor, Mr. McKinnon
flashed notes to him, including a message to "keep cool", and on one
occasion flashed him the answer to a question Inspector McMaster was asking.
(This question, which dealt with the number of inmates on the 5C West
unit, was entirely innocuous.) Notwithstanding that he asked for Mr.
McKinnon's representation, Mr. Proctor claimed that he was distracted
by Mr. McKinnon's presence at the interview.
On Mr. McKinnon's version of the evidence, he began taking
notes only when the conversation between Inspector McMaster and
Mr.
',-- Proctor became heated. (Evidently , Inspector McMas ter did not accept
Mr. Proctor's claim that he, had not seen anyone strike the Inmate.)
Although he admitted taking notes of the interview, Mr. McKinnon denied
that he gestured to Mr. Proctor, either by flashing notes, making a
"thumbs up" or "thumbs down" sign, tapping his foot or in any way
attempting to coach or instruct Mr. Proctor. At the end of the inter-
view, Inspector McMaster produced a Bible and Mr. Proctor swore an
oath that his statement was true, although he testified at the hearing
that it was not. Mr. Proctor claimed that he lied because Mr.
McKinnon was writing down everything he said. Mr. Proctor signed the
statement, which Mr. McKinnon refused to witness.
Messrs. Proctor and McKinnon left the interview together.
As they walked toward the sallyport doors (which is a double
door system with a landing in between which prevents free access in
and out of the institution), Mr. McKinnon congratulated him on his
performance, saying that he had done "well" in the interview. Inside
the sallyport doors, they encountered Ms. Tennant on her way to an
interview with the Inspector. According to Mr. Proctor, Mr. McKinnon
pointed to Ms. Tennant and said: "There goes our weak link right
there." Then the sallyport doors opened and a group of Officers,
including some of whom had just been suspended, walked toward Messrs.
McKinnon and Proctor. According to Mr. Proctor, the mood was tense
and some of the Officers began to yell obscenities. Mr. Proctor said
that Messrs. Moreau and Lonsdale demanded to know "what the hell" Mr.
Proctor had said to the Inspector. The response came from Mr. McKinnon
who said: "He did fine; he did not implicate anyone." Mr. McKinnon
then read to the Officers from the notes he had made of Mr. Proctor's
interview and their anger abated.
Mr. McKinnonls version was diametrical ly opposed. According
to Mr. McKinnon, as they came to the area of the sallyport doors, they
encountered Corporal Parish and Officer DIAndrea. In the presence of
these Officers, Mr. Proctor asked to see the notes Mr. McKinnon had
taken during the interview with Inspector McMaster. After reviewing
the notes, Mr. Proctor made the assessment that he had not done
badly in the interview and offered to show the notes to the two
Officers whom they encountered. (Mr. Proctor denied either reviewing
the notes or offering to read them to the Officers.) The Officers, who
seemed interested only in knowing whether Mr. Proctor also had been
suspended, declined to see the notes.
As they had on the previous evening, Messrs. Proctor and
Davidson spent the evening of December 8th at Mr. Proctor's home
discussing the code for about four to four and one-half hours.
However, Mr. Proctor testified that he was becoming increasingly dis-
comfited about the statement he had given to the Inspector, which he
claimed was false. Nevertheless, the next morning, Mr. Proctor thanked
Mr. McKinnon for his representation and told him that he could not
-.
have "made it" (presumably through the interview) without his assistance.
Early on the morning of December 9th, according to their
evidence, Messrs. Moreau and Dvorak met with Mr. Dunbar to confront
him with corr~plaints about the way the code was handled. In particular,
Mr. Moreau asked
(1) why some of the Supervisors had failed to
respond to the code and why the Ministry was
"covering this up";
(2) why the Supervisory Staff did not push the code
button a second time, a practice which apparently
had developed in serious situations and was a
signal to all Officers to respond to the code;
(3) why misconduct charges had not been laid
against the two Inmates for fighting, which
was normal procedure;
(4) why the two Inmates had not been escorted to
segregation, which was also normal procedure;
and
(5) why the "troublemakers" had not been removed from
the 5C West unit (it is not clear whether this
inquiry referred to the period before or after
the code).
According to Messrs. Moreau and Dvorak, Mr. Dunbar was angry at the
accusations and said that he was in charge and that "heads are going -
to roll on this one". He also informed them that Inmate Baxter would
be removed from the institution two days later (a fact which is
important in order to understand Mr. Moreau's subsequent actions).
Although Mr. Dunbar had no recollection of this meeting, he did not
deny that
it might have taken place. The Board finds in fact that
such a meeting did take place.
Mr. Proctor claimed that some time on December 9th, Mr.
Moreau asked him for a copy of his statement to Inspector McMaster,
which Mr. Moreau denied. (Although Inspector McMaster gave each
Officer a copy of the Officer's statement at the end of the interview,
Mr. Proctor evidently did not get a copy of his statement until the
following day.) When Mr. Proctor said that he did not have a copy,
Mr. Moreau said: "That's O.K.; you were with (~r.) McKinnon."
On the afternoon of December 9th, Mr. Proctor met with
Sargeant Merrier and P.C. Murdoch of the Criminal Investigations
Branch of the Metropolitan Toronto Police and, notwithstanding
reservations about having given a false statement to the Government
Inspector, gave substantially the same statement to the Police
Inspectors. As a result of the interview, however, Mr. Proctor con-
cluded that he would be blamed for the assault and, therefore, that he
ought to give a new statement identifying the assailants. However, it
was not until the next day that Mr. Proctor recanted his prior
statement.
On the morning of December lCth, Mr. Proctor attended on
Superintendent Dunbar and "admi tted" to having given a false statement
to the Inspector ostensibly because he was intimidated by his Union
- representative. Mr. Proctor offered to make a new statement and to
submit his resignation. Mr. Dunbar refused to accept the resignation
but arranged to have another statement taken. On this occasion, Mr.
Proctor was interviewed by Inspector McMaster in the presence of
Inspector Smith of the Investigations Branch and in the absence of any
Union representation. This time Mr. Proctor made a statement implicating
five* Correctional Officers in the assault on Inmate Stal teri. At
the conclusion of this meeting, Mr. Proctor encountered Mr. Moreau
who asked why he had not taken a Union Steward to the second meeting
with the Inspectors.
Mr. Proctor said that the Inspectors were merely -
confirming his earlier statenlent and so it was not necessary to have
a Union representative present. According to
Mr. Proctor, Mr. Moreau
seemed satisfied with the answer.
Meanwhile, on December 9th, Mr. Davi dson was interviewed by
Sargeant Merrier and P. C. Murdoch of the Criminal Invest'gations Branch
of the Metropolitan Toronto Police to whom he gave substantially the
* For some reason, which is not material, Mr. Proctor 'implicated only
five Officers in the assault although he had previously identified
six Officers to
Mr. Davidson.
same statement as he had given to Inspector McMaster. Mr. Davidson said
in direct evidence that after meeting with the Police Inspectors, he was
confronted by Mr. Moreau (along with Messrs. Dvorak and McKinnon) who
demanded a copy of Mr. Davidson's statement to the Police. Although
Mr. Moreau persisted in his request, Mr. Davidson said that he was
unable to comply as he had not yet received a copy of the statement.
(Apparently, Mr. Davidson had arranged to obtain a copy of his statement
at a later date in order to avoid having to produce the statement if
confronted by the Union.) The Grievors evidently did not believe
Mr. Davidson and became verbally abusive. Mr. Dvorak was especially
critical of Mr. Davidson since other Officers apparently had received
copies of their statements at the end of their interviews with the Police
Inspectors. A1 though Mr. Davi dson attempted to avoid the confrontation
by going into the lockerroom, the Grievors followed. (In cross-
examination, Mr. Davidson claimed that the Grievors were already in
the lockerroom when he arrived, which is consistent with the Grievors'
evidence and inconsistent with Mr. Davi dson's own evidence in-chief.)
The abuse continued, culminating only when Mr. McKinnon pushed Mr.
Davidson against the locker, while at the same time calling him a
"fucking rat" and a "fucking stool pigeon", epithets which had also been
used by the other two Grievors. There was no allegation of physical
aggression by the other two Grievors. The confrontation ended when
Mr. Davidson left the lockerroom.
On Mr. Dvorak's version of the evidence, it was he (rather
than Mr. Moreau) who encountered Mr. Davidson on his way into the
staff lounge. Mr. Dvorak said that Mr. Davidson was visibly shaken,
waving his arms up and down and yelling at no one in particular: "she
ratted on me", referring apparently to Ms. Tennant, and "they got me;
they nailed me". Mr. Davidson then left the lounge and went into the
staff lockerroom, which is immediately adjacent. Mr. Dvorak did not
follow. On this version of the evidence, Messrs. McKinnon and Moreau
were already in the lockerroom, along with Officer Gaston, when Mr.
Davidson burst in yelling and swearing: "fucking Tennant; she's a
fucking rat; keep her fucking mouth shut". Mr. Davidson then proceeded
toward his locker, slamming the door open and shut in succession and
swearing about "those rats", which was apparently a reference to Ms.
Tennant and Mr. Simpson; "they have enough to hang me". Messrs. Moreau
and McKinnon tried to reassure him, saying in effect that
if he hadn't
done anything, there was nothing to worry about. Mr. McKinnon
categorically denied that he assaulted Mr. Davidson in the lockerroom
or elsewhere. Messrs. Moreau, McKinnon and Gaston then left the
lockerroom, leaving Mr. Davidson behind.
Mr. Davidson encountered Mr. Dvorak on his way out of the
lockerroom several minutes later. According to Mr. Dvorak, Mr. Davidson
implored: "What do I tell the Inspectors without telling them anything?"
Mr. Dvorak said that at first he tried to ignore the question. However,
when the question was repeated, he could no longer ignore it, and he
responded by telling Mr. Davidson not to "impede, interrupt or interfere"
with the Ministry's investigation.
Meanwhile, after leaving the lockerroom, Mr. Moreau went into
the staff lounge where he spoke with Officers Tennant and Tucker, who
were the Unit Officers assigned to the 5C West unit on the night in
question. Mr. Moreau asked the Officers whether misconduct charges had
been laid against the two Inmates who were involved in the fight. Mr.
Tucker said that he was not aware of charges having been laid and asked
whether he had the right to lay charges himself. Mr. Moreau advised
the Officers of their right to lay charges but said that he left the
choice up to them, which is consistent with Ms. Tennant's evidence.
(Mr. Tucker did not testify.) For his part, Mr. Tucker decided to lay
charges against both Inmates. Ms. Tennant was less decisive, saying
that she wished to think about the matter. After speaking with both
Officers, Mr. Moreau left the institution (his tour of duty was over)
but returned several hours later for a reason which was unrelated to
his employment.
Prior to returning to the institution,
Mr. Moreau telephoned
Ms. Tennant. As Ms. Tennant was unavailable, Mr. Moreau left a message
with the Control Room Officer, Dawn Haley. Ms. Tennant relayed a
message that she wished to speak with Mr. Moreau in person. However, she
was unavailable when Mr. Moreau came into the institution. Nevertheless,
they did speak on the telephone from the institution. Ms. Tennant
explained to Mr. Moreau that she was reluctant to lay charges against
the Inmates as Lieutenant Simpson, the Shift Supervisor on the night in
question, had recommended that charges be deferred. Nevertheless, Ms.
Tennant agreed to witness
Mr. Tucker's charge sheet on Inmate Baxter,
which she then submi tted to Mr. Moreau. (She refused to witness the
charge sheet on Inmate Stalteri, as it was evidently deficient in
certain respects.
)
Mr. Moreau atterr~pted to have the charges against Inmate Baxter
investigated the same night by Corporal Steen. However, Corporal Steen
considered the request to be irregular and refused to investigate the
charges. On Corporal Steen's advice, Mr. Moreau submitted the charge
sheet to the Lieutenant in charge of the shift with the request that the
out of the institution the next day. Notwithstanding the urgent request,
the Lieutenant was reluctant to investigate the charges as there was an
investigation already in progress by the Ministry. However, he did
agree to submit the charge sheet to the Superintendent. When Mr. Moreau
inquired the next day, he discovered that no action had been taken on
the charges. Nevertheless, Assistant Superintendent, Mr. Cummaford, to
whom the inquiry was made, agreed to look into the charges and to report
back to him. Mr. Moreau heard nothing further about the matter.
Mr. Davidson claimed that during a supper break (i .e. between
5:00 p.m. and 6:00 p.m.) some time between December 7th and December
12th, he was summoned to the Shift Lieutenant's Office where Messrs.
Dvorak, Moreau and McKinnon were reviewing the occurrence reports that
had been filed with respect to the code. The Grievors said that it was
important for them to know all the facts and that they were concerned
because there were mi nor variances between Mr. Davi dson's occurrence
report and the reports submitted by some of the other Officers. They
also stressed the importance for the Officers to "hang solid". Mr.
Davidson said that Mr. Dvorak was especially abusive, threatening him to
"hang solid or else". On Mr. Davidson's evidence, the meeting lasted
only a few minutes as he had to return to duty. According to the
Ministry's records, Mr. Davidson worked continuously on the day shift
from December 7th to December 12th and, therefore, could not have been
on a supper break on any of the evenings in question. Messrs. Dvorak,
Moreau and McKinnon all denied this incident.
Messrs. Dvorak and Moreau were suspended for three days on
Saturday, December 11, 1982; Mr. McKinnon was suspended on December
13th. On December 14th, each of the Grievors was interviewed
cnnrxvrxCn1tr hsr Tm.-nnr+nu Cm;+h rrC +hn Tn~rr\c+;nrx+;nnr Dr>nr-h A1 thnllnh
the Grievors each requested Union representation, the request was
denied ostensibly because Inspector Smith wished to conduct his inves-
tigation without "interference" from the Union, No statements were taken
at any of the interviews, although all of the interviews were taped.
Amazingly, the tapes were erased and no record of the interviews was
retained. The Officers were advised at the outset of the purpose of
the interview, which was to inquire into the alleged interference with
the Ministry's investigation of the code on the 5C West unit on
December 7 th.
In the course of his interview, Mr. Dvorak was questioned about
the circumstances of the code. However, he was unable to respond as he
was not on duty on the night in question. He was also asked about an
alleged incident in the staff lockerroom on December 8th. In this
regard,
Mr. Dvorak was asked if he had observed Mr. McKinnon assault an
unidentified Officer in the lockerroom. He was also asked whether he
had assaulted the Officer, whose identity was never revealed. Mr.
Dvorak emphatically denied the accusation and offered to take a
polygraph test. His offer was not accepted. For his part, Mr. Moreau
was asked about his efforts to have misconduct charges laid against
Inmate Baxter and about an alleged assault on a Correctional Officer
in the staff lockerroom on December 8th (although the Officer was not
identified). A1 though Inspector Smith claimed that Mr. Moreau was
less than forthcoming, Mr. Moreau maintained that he answered all of
Inspector Smith's questions and that he told the Inspector everything he
knew. It is, of course, impossible to verify Inspector Smith's
assertion as no record of the interview was maintained. Finally,
Mr. McKinnon was confronted with the allegation that he had
assaulted an Officer in the staff lockerroom on December 8th (although
the victim was never identified). Mr. McKinnon denied the allegation.
He was not confronted with the a1 legation that he interfered with Mr.
Proctor during the Ministry's investigation (ostensibly to protect Mr.
Proctor) although the Employer relied on this allegation as a ground
for dismissal. After extending the original suspensions, the Employer
dismissed the Grievors on January 11, 1983.
In February, 1983, the Grievors were interviewed by the
Criminal Investigations Branch of the Metropolitan Toronto Police
about the alleged assault in the lockerroom on December 8, 1982, which
they emphatically denied. Assault charges were never laid.
Meanwhile, on December 9th, Officer Bradley submitted an
occurrence report at the request of Lieutenant Simpson. The report was
brief, a1 though not as brief as some, and significantly failed to
identify any of the Officers who escorted Inmate Stalteri along the
corridor although, by his own admission, Mr. Bradley was among them and
although some of the Officers were readily identifiable. The report
reads as follows:
"Sir:
On December 7, 1982 I was working the 4A unit on the
0800-1600 shift. At approximately 13:40 hrs a 5C code was
announced over the P.A. I responded to the 5C unit. Upon
my arrival at the 5CW grill (sic) door I noticed a number
of officers escorting an inmate out of the 5CW unit. They
proceeded to escort the inmate down the ha1 1. A1 1 of a
sudden there was ye1 1 ing and screaming coming out of the
5CW unit. The officers put the inmate on the ground and
responded to the trouble in 5CW. At this time officer
Chafe was coming through the 5BC door. I went into the
office and called for the nurse. I returned to the inmate
and myself and Mr. Chafe administered first aid to the
inmate. At no time did I see the officers using
unreasonable or excessive force. The Nurse came up to the
unit and the inmate was taken to the medical unit.
Later in the day, Mr. Bradley was interviewed by Inspector McMaster
of the Investigations Branch, to whom he gave substantially the same
information. In response to direct questioning from Inspector
McMaster, Mr. Bradley claimed that he did not see the assault on Inmate
Stalteri and that he could not identify any of the Officers who had
responded to the code except for Officer Chafe who had rendered
assistance to the Inmate in the corridor.
Mr. Bradley was interviewed again by Inspector McMaster on
December 23rd. By this time, the Ministry's investigation was almost
complete and Inspector McMaster was aware that the most serious injuries
had taken place in the corridor and that Mr. Bradley was among the
Officers who had escorted the Inmate along the corridor where the assault
took place. In view of
Mr. Bradley's proximity to the Inmate throughout
the assault, Inspector McMaster did not be1 ieve Mr. Bradley's profession
of ignorance about the ci rcums tances of the assault. Accordingly,
Inspector McMaster continued to press for more informati on, which
Mr. Bradley claimed he was unable to supply.
The following day, Mr. Bradley was summoned to a meeting by
lfr. Dunbar, who encouraged him to be more forthcoming. When this
encouragement did not produce the desired result, Mr. Dunbar
accompanied Mr. Bradley to an interview with Inspector Leutz of the
Investigations Branch. As in the previous interviews, Mr. Bradley
was unrepresented. The interview lasted approximately one hour and
produced the following statement:
" Statement of Mr. Bradley, CO-2 taken in the office of
this writer on December 24, 1982 at approx 0800 hours.
Present during this interview were Mr. Bradley,
Inspector R J Porter and this writer.
This statement concerns
Mr. Bradley's alleged
involvement in and withholding and/or concealing of
information relevant to an incident that took place at
approx 1340 hours on December 7, 1982 on the 5th Floor of
Toronto East Detention Centre involving an assault on
inmate #101-82-64755 Guiseppi Stal teri .
Sir I responded to the code in the 5C unit, we entered
through the 5B stairwell and proceeded through the 5BC
door. The officers that responded from my floor, which was
the 4th was (sic) myself and officer Fitzwilliam. When we
reached the 5B door other officers joined us and we
proceeded down the corridor to the 5BC door. I believe
the door was open, I entered through the door and down
the hallway. I reached the 5C grill (sic) door. Miss
Tennant had the grill (sic) door open. I entered the
grill (sic) door,
I saw officer Davidson and officer
Proctor holding a (sic) inmate, there were other officers
present as well. 'The inmate was bent over, so I didn't
know who it was. The unit seemed to be in a very hostile
state, yelling and screaming, telling the officers such
things as ' take your hands off him you fucking goof' ,
'You all suck cocks.' The inmate was struggling at this
time. I had just come through the grill (sic) door when
this happened. The next thing I know I was being pushed
out of the unit by a number of officers. They proceeded
down the ha1 1, the inmate was slumped over and still
struggling. I heard moaning noices (sic) while the
inmate was being taken down the hall. I saw hands and
arms moving about. The officers were in a circle with
their backs to me slightly bent over so
I couldn't see
whose arms they were. At this time Im (sic) Stalteri was
saying
OK, OK. Suddenly there was yelling and screaming
coming from the 5CW side. I wasn't sure what they were
saying as we were down the hall. The officers let go of
the inmate, and the inmate slumped to the floor. The
inmate was coughing and snorting. I thought he was choking.
The other officers left and proceeded down to the
noises in 5CW. I then noticed blood coming from the
nose of Stalteri and from his mouth. There was blood
on the floor, it was about 2-3 inches in diameter. At
this time officer Chafe was coming through the 5BC door.
We put inmate Stalteri on his side in the recovery
position. Officer Chafe asked me to call the nurse. I
called the nurse, and then went back to the inmate and
cleaned his nose and Iris mouth, so he could breath (sic)
easier. A few minutes later the nurse showed up. She
asked me what happened, and
I said I think he was in a
fight inside the unit. Inmate Stalteri tried to get up,
saying he was OK but the nurse to (sic) told him to stay
on the floor and relax. Someone brought a wheelchair
and the inmate was taken to medical.
Respectfully Submitted
BILL BRADLEY
Bill Bradley C0/2
Did you see anyone strike inmate Stal teri?
No sir.
Did you see hands swinging at inmate Stalteri?
Yes sir.
Did you strike or restrain inmate Stalteri?
No sir.
What were staff saying as they were restraining In
Stal teri?
'Smarten up you fucking goof' . 'Smarten up you
asshol e' and a1 ong those 1 i nes.
Why did staff who were struggling to restrain a
violent inmate finally just drop him to the floor
and leave to go to the unit? Why did I/m (sic)
Stal teri just quite (sic) struggling?
He said
OK OK. I guess he was willing to co-operate.
Why did staff take the word of a previously reported
violent i nmate?
Everyone just left at once.
Was that good judgement on the part of all those
offi cers?
No.
What officers were restraining I/m (sic) Stalteri from
the unit door to the point in the hallway were (sic) he
was dropped to the floor?
From what I saw Officer Davidson and Officer Proctor.
Was inmate Stalteri subjected to the excessive use of
force in the hallway outside the unit?
No.
Is there anything else you wish to add to this statement?
The whole thing is that it happened so quick it was just
seconds.
I have read the above statement and have had the
opportunity to add to or delete from any portion of this
statement.
I swear that this statement is true to the best of my
knowledge and belief.
Interview concl uded
at 1026 hours. x Bill Bradley
Taken and sworn
CHARLES R. LEUTZ. A Commissioner, Etc.
Province of Ontario, for Government of
Ontario. Expires April, 1984
Witness :
At the end of the interview, Mr. Bradley was suspended for three days
pending investigation and ultimately dismissed for withholding or
concealing information with respect to the assault on Inmate Stal teri.
The allegation against the Grievors is twofold:
(1) violation of Section 22 of the - Ministry of
Correctional Services Act, i .e. obstruction
of the Ministry's investigation of the
assault on Inmate Stalteri (in the case of
Messrs. Dvorak, McKinnon and Moreau) and
withholding or concealing information with
respect to the assault (in the case of
Mr. Bradley); and
(2) breach of their trust as Correctional Officers.
For ease of reference, Section 22 is reproduced again as follows:
"22. The Minister may designate any person as an
inspector to make such inspection or investigation as
the Minister may requi re in connection with the
administration of this Act, and the Minister may and has
just cause to dismiss any employee of the Ministry who
obstructs an inspection or investigation or withholds,
destroys, conceals or refuses to furnish any information or
thing required by an inspector for the purposes of the
inspection or investigation."
With respect to Section 22, the allegation against Messrs.
Dvorak, McKinnon and Moreau is that they interfered with or obstructed
the Ministry's investigation of the assault on Inmate Stalteri. In
support of this allegation, the Employer submitted the evidence of
Officers Proctor and Davidson, both of whom claim that they were
intimidated by the Grievors in the course of the investigation. The
Board has had considerable difficulty with the evidence of Messrs.
Proctor and Davidson, both of whom were present during the assault on
Inmate Stalteri and claim to be able to identify the assailants. This
case does not concern the assault on Inmate Stalteri except to
note that Messrs. Proctor and Davi dson collaborated in identifying
the assailants. The collaboration took place in the course of two
private conversations, including one immediately following the assault,
during which Mr. Proctor identified six Officers as the assailants of
Inmate Stalteri. The following day, six Officers were implicated by
Mr. Davidson, a matter of no mere coincidence. In the course of the
same conversation, Mr. Davi dson stressed the importance of discrediting
Ms. Tennant, who was standing at the grille door and presumably would
have seen the entire assault. In view of the collaboration between
Messrs. Proctor and Davidson, their credibility is seriously damaged.
Accordingly, the Board has scrutinized their evidence with particular
care and has accepted their evidence (and, in particular, the evidence
of Mr. Davidson, which the Board considers the more suspect) only
where it was confirmed by the evidence of other witnesses or where the
inference is irresistible that the evidence is true.
The essence of the allegation of "obstruction" is that
Messrs. Dvorak, McKinnon and Moreau intimidated other Officers into
withholding information about the assault on Inmate Stalteri , including
information as to the identity of the Inmate's assailants. With respect
to this allegation, there were specific instances of obstruction or
intimidation raised against each of the Grievors.
With respect to Mr. Dvorak, it is alleged
(1) that on December 8th at the elevators, he tried
to intimidate a group of Officers to remain
silent with respect to the assault on Inmate
Stalteri and to take a Union representative into
the investigation conducted by the Ministry;
(2) that on December 9th in the staff lockerroom,
he tried by intimidation to obtain a copy of
Mr. Davidson's statement to the police
Investigators; and
(3) that on a supper break on an unspecified date
between December 7th and December 12th, he
tried to intimidate Mr. Davidson into remaining
silent with respect to the assault.
Messrs. McKinnon and Moreau are also implicated in the second and third
instances and their involvement is dealt with herein.
With respect to the first allegation, the evidence is that
Mr. Dvorak addressed a group of his fellow Officers at the elevators
on the first floor prior to the commencement of the Ministry's
investigation into the code on the 5C West unit. By his own admission,
Mr. Dvorak advised the Officers of their right to Union representation
during the investigation and implored them not to "interfere with,
obstruct or impede" the investigation. He also counselled them to
"stay solid" and "keep cool". According to Mr. Proctor, Mr. Dvorak
also said: "We don't need a rat on this one", a particularly damaging
statement if it was made. However, there was no corroboration of this
statement from any of the other Officers who were in the vicinity of
the elevator. In the absence of corrobot-ating evidence, the Board is
not prepared to find that this statement attributed to Mr. Dvorak by
Mr. Proctor was in fact made. However, by his own admission, Mr.
Dvorak made the other statements attributed to him, i.e. he advised
the Officers of their right to Union representation during the inves-
tigation and told them to "keep cool" and "stay solid". Obviously,
there is nothing wrong with the first statement. The Ministry has
agreed in certain circumstances to a1 low Union representation where
requested during the course of a Section 22 investigation. Mr.
Dvorak's advice to "take in a Union representative" was consistent
with the right to request Union representation and in no way improper.
Nevertheless, Mr. Proctor felt intimi dated, presumably because
he did not wish to have a Union representative hear what he was telling
the Inspector. Mr. Proctor may have felt that this statement was
intimidating; others did not. Nevertheless, it is the intention of the
person making the statement and not the effect on the person hearing it
which determines whether or not there is intimidation: see Regina v.
Tortolano, Kelly and Cadwell (1975), 28 C.C.C.(2d)562 (O.C.A.). In this
regard, although Mr. Proctor alleged that Mr. Dvorak had an ulterior
motive in advising the Officers of their right to Union representation
(presumably to coerce the Officers into withholding information from
the investigation), no ulterior purpose was in fact proven. Indeed,
whatever Mr. Proctor may have felt, there was no compulsion to take
in a Union representative, which was left to the discretion of the
individual Officer. For these reasons, the Board finds that Mr.
Dvorak's advice to take in a Union representative does not constitute
intimidation.
In a different category is his statement to "stay solid".
In the course of his evidence, IYr. Dvorak advanced two interpretations
of the term "solid". At one point, he suggested that the term refers
to a "solid team of professionals",
i .e. strong Correctional Officers,
an interpretation which, in the Board's view, is naive in the extreme.
Subsequently, he clarified his evidence, suggesting that the term
"solid" refers to a "solid team of professionals who protect each
other's interests" (emphasis added), an admission which comes
perilously close to counselling a cover-up. However, an equally
credible explanation of this interpretation is that the term "solid"
was an expression of Union solidarity intended merely to make the
Officers aware that the Union was behind them in what was admittedly a
difficult set of circumstances. The Board has wrestled with the
inference to be drawn from this statement and, a1 though far from
satisfied in the matter, must give the benefit of the doubt to the
Grievor. In our view, the term "solid", when used in conjunction with
the common expression of encouragement, "keep cool", is ambiguous. In
the absence of evidence to resolve the ambiguity, the Board cannot
draw the inference that Mr. Dvorak interfered with the investigation
bv tellins the members hi^ to "stav solid".
Nevertheless, the Board is unable to accept the suggestion
that Mr. Dvorak addressed a group of his fellow Officers and admonished
them, as if by rote, not to "obstruct, interfere with or impede" the
Ministry's investigation in order to avert a walkout. The Board heard
the evidence of Mr. Dvorak and his demeanour in this regard was simply
not convincing. Moreover, no other witness referred to the threat of a
walkout (except Mr. Moreau who testified on the basis of information
given to him by Mr. Dvorak), an important statement, if it was made,
since Correctional Officers are prohibited from engaging in a strike.
Finally, it is improbable that the Officers would threaten a strike
prior to the start of the shift on December 8th when there had been no
indication as to how the Ministry would react to the code. Accordingly,
the Board does not accept the assertion implicit in Mr. Dvorak's
evidence that he encouraged cooperation with the Ministry of Correctional
Services Act. More will be said about this later.
The second allegation is that Mr. Dvorak, along with Messrs.
McKinnon and Moreau, tried to intimidate Mr. Davidson into producing
a copy of Mr. Davidson's statement to the Police Inspectors. The
evidence in this regard is particularly disturbing. According to
Mr. Davidson, the three Grievors confronted him in the staff lounge
on the afternoon of December 9th and demanded a copy of his statement
to the police. When Mr. Davidson said that he did not have a copy of
the statement, the Grievors became suspicious and began to insult him.
The insults continued in the lockerroom, where the Grievors had followed
Mr. Davidson, and culminated with Mr. McKinnon pushing Mr. Davidson
against a locker. The Union's evidence was diametrically opposed.
According to the Union, Mr. Dvorak encountered Mr. Davidson on his way
into the staff lounge. According to Mr. Dvorak, Mr. Davidson was
extremely agitated and said something to the effect that Ms. Tennant
had informed on him and that they had "enough to hang" him. He was
still swearing when he went into the lockerroom where he encountered
Messrs. McKinnon and Moreau in the presence of Officer Gaston.
Although Messrs. McKinnon and Moreau tried to reassure him, Mr.
Davidson was too agitated to be consoled. He was still overwrought
when they left him in the lockerroom several minutes later. When he
eventually came out of the lockerroom, Mr. Davidson met Mr. Dvorak,
whom he had encountered on the way in, and asked him in an urgent
manner: "What do I tell the Inspectors without telling them anything?"
Mr. Dvorak, who tried to convince the Board that he was shocked at the
suggestion, said that at first he ignored the question. However, when
the question was repeated, Mr. Dvorak said that he warned Mr. Davidson
not to "obstruct, interfere with or impede" the investigation.
The evidence of both sides cannot be reconciled. On the one
hand is the evidence of Mr. Davidson who claims to have been intimidated
by the Union to the point of physical abuse to reveal what he had told
the Police about the assault on Inmate Stalteri. On the other hand is
the Union's depiction of Mr. Davidson as inconsolable, having found out
that he had been implicated in the assault, and desirous of the Union's
help in extricating himself. In the Board's view, although neither
version of the evidence is entirely satisfying, in the final analysis,
the Employer's evidence must be preferred. A1 though the Union's
evidence is in some respects imitative of the truth, in that some of the
facts recited were consistent with the truth, the story as a whole is
not. In particular, it is highly unlikely that Mr. Davidson would have
a~~roached Mr. Dvorak and aqk~d him what he rn~rld t~ll th~ TnsnPrtnrq
"without telling them anything" since Mr. Davidson had already "told
them everything" by implicating his fellow Officers in the assault.
Furthermore, there is no indication that Mr. Davidson had ever been
implicated by Ms. Tennant or Corporal Sirnpson. Accordingly, it is
beyond belief that he would burst into the lockerroom, claiming that he
had.
For these reasons, the Board cannot accept the Union's
version of the lockerroom incident. However, the Board also does not
accept in total
Mr. Davidson's version of the encounter, particularly
with respect to the alleged push. Although Mr. Davidson claimed
during the investigation that he had received only a gentle shove, the
evidence at the hearing was in no way suggestive of a gentle shove.
Although any form of push or shove constitutes an assault, the Board
would have expected Mr. Davidson to have been more candid with respect to
the degree of force used. In view of Mr. Davidson's lack of candour and
the surrounding circumstances, the evidence is simply too tenuous to
conclude that a push of any sort took place. The evidence is
sufficient, however, to conclude that there was some attempt on the
part of the Grievors to obtain a copy of Mr. Davidson's statement to
the Police and that the encounter became acrimonious. All three
Grievors are implicated in this exchange.
Finally, it was alleged that Mr. Dvorak, along with Messrs.
McKinnon and Moreau, intimidated Mr. Davidson on a supper break between
5:00 p.m. and 6:00 p.m. on an unspecified date between December 7th
and December 12th. Mr. Davidson said in essence that on this occasion,
the Grievors, and especially Mr. Dvorak, were verbally abusive and
admonished him to "hang solid". Mr. Davidson claimed that the
-. . .~ . . .
However, the uncontradicted evidence, taken from the Minis try records,
is that
Mr. Davidson was not on duty over the supper break on any of
the days in question and so, even if he was in the institution (which
is highly unlikely), he would not have been returning to duty after the
alleged incident with the three Srievors. Nothing more need be said
about this incident. If it occurred, better evidence ought to have
been adduced. The Board absolves the Grievors with respect to this
allegation.
With respect to Mr. McKinnon, it was alleged
(1) that on December 9th in the staff lockerroom
he tried to intimidate
Mr. Davidson into
producing a copy of his statement to the
police (known as the "lockerroom incident").
(For reasons already given, there was
insufficient evidence to find a push by
Mr. McKinnon although there was evidence
that, along with the other two Grievors,
Mr. McKinnon made persistent and aggressi ve
attempts to obtain a copy of Mr. Davidson's
statement.) ;
(2) that he tried to intimidate Mr. Davidson on
a supper break some time between December 7th
and December 12th. (This allegation has not
been proven. ) ; and
(3) that he tried to intimidate Mr. Proctor during
a meeting with Inspector McMaster.
The allegation in this regard is that Mr. McKinnon attended
the interview at the request of Mr. Proctor, sidled up to Mr. Proctor
and signalled him by flashing notes, making "thumbs up" or "thumbs
down" gestures, and tapping his foot. In addition, he took notes of
the interview. In the Board's view, it was perfectly proper for Mr.
McKinnon in his capacity of Union representative to have taken notes of
the interview. The meaning to be attributed to the gestures is more
equivocal. In the Board's view, although the gestures were intended to
provide encouragement (e.g. the note to "keep cool"), they fell short
of actual coaching. Nevertheless, Mr. Proctor claimed that he was
intimidated by the gestures. In the Board's view,
it was not the
gestures which caused
Mr. Proctor to be intimidated but the mere
presence of Mr. McKinnon in the interview. (A1 though Mr. Proctor
invited
Mr. McKinnon to represent him, it seems clear that this
invitation was extended in order to divert suspicion from Mr. Proctor.
It is not necessarily inconsistent with the extension of this
invitation that
Mr. Proctor was intimi dated by Mr. McKinnon's presence
in the interview.) So long as there was a Union representative in
attendance,
Mr. Proctor was reluctant to identify the assailants of
Inmate Stalteri. However, this is not because of anything Mr.
McKinnon did or did not do. It is because of an insidious ethic of
si lence which has developed at the Toronto East Detention Centre
irrespective of anything
Mr. McKinnon may or may not have done. In
this atmosphere,
it is not surprising that Mr. Proctor viewed the
gestures as intimidation. However, the Board finds that the gestures
were simply too arr~biguous to conclude that they were intended as such.
The allegations with respect to
Mr. Moreau are
(1) that he tried to intimidate Mr. Proctor into
providing a copy of his statement to the police
in the lockerroom on December 8th. (Mr. Moreau
is implicated along with Messrs. Dvorak and
McKinnon in an aggressive attempt to obtain a
copy of this statement.);
(2) that he tried to intimidate Mr. Davidson on a
supper break between December 7th and December
12th. (This charge has not been proven.);
(3) that he asked Mr. Proctor for a copy of the
statement that he had given to Inspector
McMaster. (However, Mr. Moreau did not pursue
the matter when Mr. Proctor said that he did
not have a copy as Mr. Proctor had attended the
interview with Mr. McKinnon. A1 thouah Mr.
Moreau denied this allegation, the Board
accepts that
it was true since it is consistent
with attempts by Mr. Moreau and others to obtain
copies of statements given during the inves-
tigation into the assault on Inmate Stalteri.
Nevertheless, in the absence of evidence of
intimidation or impropriety, the mere attempt
to obtain a copy of an employee's statement
is not misconduct as the statement was of
potenti a1 value to Mr. Moreau in his capacity
of Union Officer.);
(4) that, along with Officer Lonsdale, he confronted
Mr. Proctor to find out what information he had
given to the Ministry Inspector; and
(5) that he tried to get Officers Tennant and Tucker
to file misconduct charges against Inmate
Baxter.
The evidence with respect to the fourth allegation is
diametrically opposed. According to Mr. Proctor, fol lowing an inter-
view with Inspector McMaster, he was confronted by Officers Lonsdale
and Moreau. The Officers were abusive and aggressive in their efforts
to find out what he had told the Inspector. The abuse subsided, however,
when Mr. McKinnon assured them that no one had been implicated by Mr.
Proctor. On the Union's version of the evidence, it was Officer
D'Andrea and Corporal Parish (rather than Officers Lonsdale and Moreau)
whom Mr. Proctor encountered following the interview with Inspector
McMaster. Furthermore, on this version of the evidence, the encounter
was calm and uneventful. Although Mr. Proctor offered to apprise the
Officers of the substance of his interview by reading to them from
the notes taken by Mr. McKinnon, the Officers declined the offer. In
the Board's view, in light of the atmosphere surrounding the code, the
Union's version is highly improbable. Accordingly, notwithstanding the
Board's reservations about the credibility of Mr. Proctor, the Board
finds that his evidence is more probable than the Union's evidence and
concludes, therefore, that Mr. Moreau in fact confronted Mr. Proctor
following his interview with Inspector McMaster in an attempt to find
out what Mr. Proctor had told the Inspector.
The facts with respect to the fifth allegation are admitted,
i.e. that Mr. Moreau attempted to have misconduct charges laid against
the Inmates involved in the fight and, in particular, against Inmate
Baxter. However, the Union categorically denied that this attempt
constituted intimidation. In addition to assessing discipline against
an inmate, the purpose of laying misconduct charges is to protect the
Officers who may have been involved in the matter in the event that
subsequent proceedings are initiated with respect to the misconduct.
Accordingly, it would appear that Mr. Moreau wanted the misconduct
reports filed in order to protect the Officers who had responded to the
code. If Mr. Moreau's purpose was to have a record of the facts in the
event of subsequent legal proceedings, then his actions cannot be
impugned. If, however, the purpose was to shift the blame for the
assault from the Officers to Inmate Baxter, then his actions were
improper. Although the Board is not satisfied in this matter, in our
view, it would not be safe on the evidence tendered to draw the
inference that Mr. Moreau attempted to have the charges laid in order
to divert suspicion away from the Officers. Accordingly, a1 though the
Board questions Mr. Moreau's excessive zeal in having the charges laid,
it cannot be concluded that his actions in this regard were improper.
In summary, with respect to the allegations under Section 22,
the Board finds (1) that the three Grievors made an inappropriate and
aggressive attempt to obtain a copy of Mr. Davidsonls statement to the
Police Inspector; and (2) that Mr. Moreau badgered Mr. Proctor into
revealing what Mr. Proctor had said to the Ministry Inspector. In the
Board's view, the Grievors' actions fell short of actual obstruction or
interference with the Ministry's investigation. Nevertheless, thei r
actions obviously were not intended to promote the investigation not-
withstanding that, in the Board's view, the Grievors had an obligation,
which may be implied from their employment relationship and from the
provisions of Section 22, to assist in the investigation. By coercing
at least one fellow Officer into producing a copy of his statement to
the Police, the Grievors were in breach of this obligation. This does
not mean that the Grievors were not entitled to request copies of the
statements given by the Officers in the course of an investigation in
order to assist them in their representational responsibilities.
However, they were not entitled to procure these statements by use of
coercion and for purposes unrelated to their Union activities. In the
instant case, it seems clear that Mr. Davidson's statement was being
sought by the Grievors for a purpose unrelated to the legitimate
exercise of their responsibilities as Union Officers. Furthermore,
the effort to secure Mr. Davidson's statement cannot be characterized
as a simple "request" but is more properly viewed as an aggressive
attempt to coerce a fellow employee, which is serious misconduct. In
the same category is
Mr. Moreau's confrontation with Mr. proctor
following his interview wi th Inspector McMaster. A1 though the confron-
tation on this occasion was brief and reasonably non-threatening, the
Board finds that it did constitute a coercive attempt to find out
what Mr. Proctor told the Inspector and as such was improper.
In addition to this blatant misconduct, there are other
grounds for discipline against Messrs. Dvorak and McKinnon based on
the leadership role they assumed duri np the investigation. More
particularly, the Union President, Mr. Dvorak, addressed the bargaining
unit members at the outset of the investigation to offer advice as to
their rights and obligations during the course of the investigation.
Mr. McKinnon, as Chief Steward, represented other Officers in the
investigation. Of course, the assumption of leadership, whether by
a Union Officer or otherwise, is not improper. Nor is it cause for
discipline. However, having assumed a leadership role, the Grievors
must accept the responsibility that comes with leadership and
recognize that their actions would be viewed as more authoritative
than the actions of other en~ployees. Viewed from this perspective,
the Grievors were required by example or otherwise to encourage
cooperation with the investigation. In the Board's view, this
requirement was not fulfilled by Mr. Dvorak's advice to his fellow
employees to "stay solid" and by
Mr. McKinnon's gestures to Officer
Proctor during the interview with Inspector McMaster. At best, these
veiled references and ambiguous actions could have been misinter-
preted by the other Officers who look to the Grievors to provide
leadership and di rection. Accordingly, a1 though these words and
gestures fall short of obstruction or interference with the inves-
tigation under Section 22, they do constitute a breach of the
Grievors' obligation to assist with the investigation and, as such,
were a breach of their trust as Correctional Officers. This finding
is not intended to impose a higher duty on the Grievors because of
their Union office. It is intended only to recognize that there is a
responsibility on all Correctional Officers to assist in the inves-
tigation under Section 22 and an even greater responsibility on those
Officers who assume leadership roles.
The Gri evors were di smi ssed from thei r employment for breach
of Section
22 and breach of their trust as Correctional Officers.
With respect to Messrs. Dvorak, McKinnon and Moreau, the allegation
under Section 22 has not been proven although there is proof of breach
of trust. This is a serious matter, although far less serious than
the allegation which the Employer sought to prove. Accordingly,
although a substantial penalty is warranted, in the Board's view,
dismissal was excessive in all of the circumstances. In view of the
Grievors' clean records and length of service, the Board is of the
view that a three-month suspension is just and reasonable. This penalty
is intended to convey the seriousness with which the Board views the
Grievnrs' misconduct. However, in light of the quality of the evidence
tendered, a more substantial penalty cannot be supported.
The allegation with respect to Mr. Bradley is fundamentally
different. It is alleged that Mr. Bradley concealed or withheld
information from the investigation notwithstanding that he was beside
the Inmate when the assault in the corridor took place. In fact,
Mr. Bradley's occurrence report, which was prepared at the request of
Lieutenant Simpson, was woefully inadequate, omitting any reference to
either the assault or the assailants. The statement given in the
first instance to the Inspector was equally deficient. However, in
the second interview with the Inspectors on December 23rd, Mr. Bradley
was more forthcoming, identifying both Messrs. Proctor and Davidson as
among the group of Officers escorting the Inmate along the corridor.
He also said that he saw "hands and arms swinging" at Inmate Stalteri,
a1 though he continued to deny witnessing an assault. Given the
proximity of
Mr. Bradley to the Inmate and the visibility of some of
the escorting Officers, it is hard to believe that he did not see more.
In particular, it strains belief that he did not at least recognize
Officer Bedeau, the only black Officer among the escorting group, and
that he did not see anyone assault the Inmate.
In view of his proximity to the Inmate, it is impossible to
conclude anything except that Mr. Bradley did not tell the Inspectors
everything he knew, which constitutes concealment within the meanirlg
of Section 22 of the - Ministry of Correctional Services Act. However,
he did provide some information (albeit reluctantly) and, in the
Board's view, this puts his case in a different category than the
cases of Messrs. Gordon, D'Andrea and Lonsdale dealt with in the Bedeau
decision. Mo?eover, he is also in a different category than ,others who
were not part of tne escorting group of Officers. Although it is
impossible to believe that some of the Officers did not see more than
they admitted, absence of disclosure on their part cannot absolve Mr.
Bradley of misconduct as they were not in analogous ci rcumstances to
Mr. Bradley. In fact, there were no other Officers in analogous cir-
cumstances who escaped punishment. More particularly, Mr. Bradley
and others who have been disciplined, were among the group of Officers
who escorted the Inmate along the corridor and, therefore, were in a
unique position to observe the assault. Those who were not disciplined
had a poorer perspective on the assault. Accordingly, even though
these Officers also could have been more forthcoming, their failure to
do so is in no way related to Mr. Bradley's obvious dereliction of
duty. In all of the circumstances, including Mr. Bradley's
unblemished record and length of service, the Board is of the view
that a three-month suspension is warranted for Mr. Bradley.
Accordingly, the Board awards that the dismissals be striken
from the records of Messrs. Dvorak, McKinnon, Moreau and Bradley and
that suspensions of three months each be substituted. The Grievors are
entitled to retain all of their seniority and benefits for the period
of the improper dismissal and to be reimbursed for compensation lost
in excess of three months. The Board remains seized in the event that
there are difficulties in applying this award.
DATED AT TOROIVTO this 27th day of November, 1984.
M.K. Saltman - Vice-Chairman
- d-
-
W. Walsh - Member
4- aildendun to follow)
B. Lanigan - Member