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HomeMy WebLinkAbout1998-0157.Holmes.03-02-04 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 0157/98 UNION# 98A354 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Holmes) Grievor - and - The Crown III RIght of Ontano (Mimstry of PublIc Safety and Secunty) Employer BEFORE Maureen K. Saltman Vice-Chair FOR THE UNION Nelson J Roland Ryder Wnght Blair & Doyle Barnsters and SOlICItorS FOR THE EMPLOYER Chnstopher Jodhan and Len HatzIs Counsel Management Board Secretanat HEARING July 8 1999 July 13 1999 July 14 1999 July 28 1999 July 29 1999 February 28 2000 March 6 2000 March 7 2000 May 16 2000 July 27 2000 January 11 2001 January 24 2001 May 16 2001 May 28 2001 May 29 2001 DECISION RENDERED December 20 2001 2 REASONS FOR DECISION The Gnevor In thIS case Dene Holmes, who was employed contInuously from Apnl 29 1991 as a CorrectIOnal Officer at the Sudbury DIstnct JaIl, was dIscharged on February 11 1998 Pnor to hIS employment as a CorrectlOnal Officer the Gnevor was employed as an RCMP Officer for some 10 years and as a pnvate InVestIgator for approxImately three years thereafter The letter of dIscharge, whIch the Gnevor receIved on or about ItS date of Issuance, reads as follows Personal and Confidential February 11 1998 Mr Dene Holmes Dear Mr Holmes On Monday February 02, 1998 you attended a meetIng In my office to respond to the allegatIOn that you engaged In Inappropnate conduct whIch also Involves sexual ImpropnetIes towards a female offender At the meetIng you were accompamed by your local representatIve Mr P Slee and Mr P Lachance Dunng our meetIng you demed the occurrence of the IncIdences [sic] of sexual ImpropnetIes dIrected towards a female Inmate on October 05 1998 You admItted makIng the statement to the InVestIgator ('Why would I, a mamed man, want to meet, I presume, a NatIve, In a publIc restaurant no matter what tIme of day or mght') You explaIned that you dId not Intend the remark to be dISCnmInatory After careful consIderatIOn of the results of the InVestIgatIOn Into the matter and your responses, I am of the VIew that on a balance of probabIlIty the InCIdences [sic] dId occur Your conduct and behavlOr IS In dIrect conflIct WIth the Mimstry polIcy and represents a VIOlatIOn of the Mimstry's Statements of EthIcal PnncIples It IS clear that you do not appreCIate that CorrectIOnal Officers must exhIbIt hIgh standards of conduct In order to proVIde qualIty care to the offenders whIle servIng the publIc of Ontano 3 As a CorrectIOnal Officer wIth more than SIX (6) years of servIce and havmg been warned and dIscIplIned respectmg your unprofessIOnal conduct and mappropnate behaVIOr you should have been well aware of you [sic] responSIbIlIty to conduct yourself m accordance wIth the standards of appropnate behaVIOr As a result, m conSIderatIOn of the senousness of these mCIdences [sic] and your work record to date, I would advIse you that your servIces as an unclassIfied CorrectIOnal Officer at thIS mstItutIOn wIll be termmated effectIve the date of receIpt of thIS letter Please return to the Office Manager any copIes of the mstItutIOnal standmg orders, your IdentIficatIOn card and any other property belongmg to the Mimstry Yours truly 'R Chenard' R Chenard cc Mr J Lake Mr K. Graham Mr J WhIbbs Mrs L Spears On September 2, 1997 the Complamant, Ms P was conVIcted of aggravated assault, for whIch she was sentenced to 90 days m Jail, to be served mtermIttently on weekends, from 700 p.m on Fnday to 6 00 a.m on Monday The Complamant began servmg her sentence at the Sudbury DIstnct JaIl on Fnday September 5th As an mtermIttent mmate, the Complamant was housed apart from the general mmate populatlOn, eIther m a segregatIOn cell or m the Health Umt. On the weekend of October 3rd the ComplaInant was assIgned to 4 Comdor whIch IS a segregatIOn umt m "B" Area, located on the first floor On Saturday the Complamant testIfied that she was not feelIng well She was, In her words, "burmng up WIth fever" and expenencmg "hot and cold chIlls" The Complamant testIfied that she asked the CorrectIOnal Officer on duty If she could see the Nurse, but was told that the Nurse was busy and that she had to make a wntten request to see her It would appear however that the Nurse does medIcatIOn rounds at regular mtervals, at whIch tIme an Inmate may ask to see her WIthout makmg a wntten request. Nevertheless, Ms P testIfied 4 that, m response to her complamt of fever the CorrectIOnal Officer told her "to take her clothes off' or words to that effect (she was weanng a mghtgown) The Complamant testIfied that, when he made thIS comment, the CorrectIOnal Officer had a "flIrtatlOus look m hIS eyes" and that, as a result of the comment, she felt "degraded as a woman" She also testIfied, m effect, that the CorrectIOnal Officer lIngered In the area of her cell for a tIme after makmg the comment. The Complamant testIfied that the offenSIve comment (tellIng her "to take her clothes off') was made "toward evemng, before suppertIme" She also testIfied that "later toward evemng" the CorrectIOnal Officer whose name she dId not know came by her cell agam and started a conversatIOn. Apparently the Complamant was a student at Cambnan College and brought her homework to the JaIl on weekends The CorrectIOnal Officer asked about her schoolwork and what she dId m her spare tIme The ComplaInant Said that she dId not do anythmg, as her schoolwork took up most of her tIme The CorrectIOnal Officer then asked If she "went to bars" The Complamant Said she dId not, as she had been released on her own recogmzance m relatIOn to other charges and that one of the condItIOns of her recogmzance was that she abstam from alcohol Accordmg to the Complamant, the conversatIOn contmued, culmInatmg man mVItatIOn from the CorrectIOnal Officer to meet hIm at TrevI's Restaurant on Lascelles Blvd. at 900 p.m on Monday The Complamant testIfied that she was famIlIar wIth TrevI's as she lIved m the area and played Bmgo next door She also testIfied that the CorrectIOnal Officer told her that he lIved on Lascelles Blvd. behInd Miracle Mart across from TrevI' s Restaurant. In any event, although the Complamant testIfied that she "dIdn't know what to make" of the InVItatlOn, she agreed to meet hIm at the Restaurant. Some tIme before 11 00 P m. that evemng, the Officer came back to her cell and changed the meetmg tIme from 9 00 P m. to 11 00 P m. on Monday 5 The Complamant testIfied m exammatIOn-m-chIef that she dId not meet the CorrectIOnal Officer at TreVI's because she felt It was mappropnate In cross-exammatIOn, however she acknowledged that she could not meet the Officer at TrevI's as It would have been a breach of the condItIOns of her recogmzance to go to a restaurant that served alcohol Although the Complamant was released by a female CorrectIOnal Officer at around 5 20 a.m the follOWIng Monday (October 6th) she dId not mentlOn the alleged mCIdent mvolvmg a male CorrectIOnal Officer Furthermore, she dId not report the mCIdent ImmedIately upon her release (ostensIbly because, as an mmate, she thought she had no nghts) However shortly thereafter (whIch would appear to have been on October 7th) she mentlOned the mCIdent to Laura PelletIer a Court Worker wIth the NatIve FnendshIp Centre On Ms PelletIer's advIce, the Complamant made a telephone call to the JaIl When the receptIOmst answered, the Complamant IdentIfied herself as an mtermIttent mmate and asked questIOns about whether It was unprofessIOnal for a CorrectIOnal Officer to ask an mmate out on a date and generally about mteractIOns between CorrectIOnal Officers and mmates Although the Complamant suggested that these were hypothetIcal questlOns, the receptIOmst, Lorrame Blondm, testIfied that she understood the Complamant to be refemng to her own SItuatIOn. In thIS regard, Ms Blondm testIfied that the Complamant sought confirmatIOn that there should be "no connectIOn between guards and mmates" and Said that she wanted to speak to someone about a matter of thIS nature mvolvmg a mamed CorrectIOnal Officer at the Sudbury DIstnct JaIl where she was servmg her sentence In oral eVIdence however the Complamant demed any knowledge of the CorrectIOnal Officer's mantal status In any event, Ms Blondm transferred the call to the Secunty Manager Gary Parent. For hIS part, Mr Parent testIfied that he receIved a telephone call on October ih from Ms PelletIer WIth whom he had had prevIOUS dealIngs Accordmg to Mr Parent, Ms PelletIer 6 mdIcated that Ms P was m her office and wIshed to lodge a complamt. Ms PelletIer then gave the telephone to Ms P who outlIned the nature of her complamt, I e that a CorrectIOnal Officer had made an mappropnate comment about her takmg her clothes off and then asked her out on a date Ms P asked If thIS was proper conduct for a CorrectIOnal Officer Mr Parent testIfied, m effect, that he had no doubt that Ms P was descnbmg an actual mCIdent, rather than a hypothetIcal CIrcumstance Accordmgly Mr Parent adVIsed Ms P that If she WIshed to pursue the matter she would have to prepare a wntten complamt, whIch she proceeded to do That complamt reads as follows TO WHOM IT [sic] CONCERN I, [SP] DO INTERMITTENTS ON WEEKENDS AT SUDBURY DISTRICT JAIL ON OCTOBER 5 1997 SECTION 4 (CELL 2) I HAD TOLD THE GUARD DENE L I WAS FEELING RATHER SICK. I HAD HOT & COLD CHILLS & SWEATS I HAD MY NIGHTGOWN ON BECAUSE IT WAS GOING TOWARDS THE EVENING I FELT IT W AS NOT RIGHT & I FELT DEGRADED ABOUT HIS COMMENT BEFORE LOCK UP HE CAME TO MY CELL & ASKED ME WHERE I HANG OUT AT? I HAD TOLD HIM I DON'T USUALLY GO ANY WHERE BECAUSE OF MY SCHOOL SCHEDULE AT CAMBRIAN COLLEGE, IT TAKES UP MY TIME PLUS OF [sic] MY HOMEWORK. LATER HE (DENE) ASK [sic] ME TO MEET HIM AT TREV'S [sic] RESTAURANT ON LASALLE [sic] BLVD ON OCTOBER 6 1997 ME I FELT IT WASN'T PROPER TO MEET HIM AT THE PLACE BECAUSE IT WAS UNPROFFESSSIONAL [sic] ON HIS PART I STILL FEEL I'M NOT DOING THE RIGHT THING BECAUSE OF MY SITUATION OF DOING MY TIME ON THE WEEKENDS I DON'T WANT ANY HASSELS [sic] FROM THE GUARDS AT THE JAIL I KNEW I HAD TO DO SOMETHING ABOUT THIS BECAUSE I DON'T WANT THIS THE [sic] HAPPEN TO ANOTHER INMATE I'M GRATEFUL FOR TELLING SOMEONE TO GET OUT OF [sic] MY CHEST I COULDN'T EVEN CONCETRATE [sic] AT SCHOOL BECAUSE ABOUT THIS SITUATION I'M IN ['SP'] The Complamant testIfied that she told Mr Parent over the telephone that she thought the name of the CorrectIOnal Officer mvolved m the InCIdent was "Dene" (although It IS unclear whether she was saymg "Dean" or "Dene") or "D somethmg" and Mr Parent IdentIfied the Officer as "Holmes" Accordmgly as she had been appnsed of the IdentIty of the CorrectIOnal Officer at the tIme she prepared her complamt, the Complamant charactenzed the reference to "Dene L" as a 7 "typo" As to the content of her complamt, Ms P testIfied that shortly before lockup the CorrectIOnal Officer asked where she "hung out" and then came back after lockup to ask her to meet hIm at TrevI's Restaurant at 9 00 p.m on Monday A couple of mmutes later he returned to change the meetmg tIme to 11 00 p.m ASIde from askmg for a wntten complamt, Mr Parent scheduled an mtervIew WIth the Complamant. Pnor to the mtervIew Mr Parent adVIsed the Supenntendent, Roger Chenard, that an mformal complaInt had been made allegmg that a male staff member had made an mappropnate comment and tned to make a date WIth a female mmate Mr Chenard dIrected Mr Parent to mtervIew the mmate and obtam a statement, at whIch tIme, a deCISIOn would be made as to whether to conduct an mternal mvestIgatIOn or refer the matter to the Independent InvestIgatIOns Umt ("IIU") Pursuant to thIS dIrectIOn and pnor to mtervIewmg the mmate, Mr Parent put together some documentatIOn whIch mIght be relevant to an mvestIgatIOn of the complamt. That documentatIOn Included the DIsassocIatIOn BehavIOur Report, whIch IS located on the wall outSIde each segregatIOn cell and on whIch the Area Officer (bemg the CorrectIOnal Officer assIgned to the area) records hIS observatIOns of each mmate m the segregatIOn area (in thIS case, 4 Corndor m "B" Area) as part of hIS routme rounds at approXImately 20-mmute mtervals, the log book, m whIch mformatIOn pertment to the entIre shIft for the area m questIOn IS recorded, and the duty roster on whIch mdIVIdual aSSIgnments are recorded m four-hour blocks In thIS case, the DIsaSSOCIatIOn BehavlOur Report for October 5th IdentIfies the Gnevor as the Area Officer from 7 05 pm. to 1040 p.m (Although the actual entry 1905 to 2240 was made on the 24-hour clock, to aVOId confUSIOn WIth other eVIdence, the Board has converted all references to the 12-hour clock.) It also mcludes entnes of 4 30 p.m for supper and 900 pm. for "Jug up" 8 (whIch IS a lIght snack, such as cake cookies, cheese and crackers or a sandwIch) The log book for the same date mdIcates "dIshes out" whIch sIgmfies the end of the meal penod, at 5 00 P m. "Jug up" at 9 00 P m. and "Jugs out" sIgmfymg the end of the snack penod, at 9 40 P m. The log book also IdentIfies Claude St. Jean as the ShIft SupervIsor for the #3 ShIft from 7 00 p.m to 7 00 a.m and the Gnevor as the Area Officer for "B" Area from 6 50 p.m to 1042 p.m and mdIcates that the Nurse, Judy Buchanan, was m "B" Area dIstnbutmg medIcatlOns at around 7 35 p.m Fmally the duty roster for October 5th IdentIfies an mdIvIdual by the name of MroczyaskI as the ShIft SupervIsor from 7 00 a.m to 7 00 P m. and Mr St. Jean, from 7 00 P m to 7 00 a.m the next day The duty roster further IdentIfies the Gnevor as the Area Officer for "B" Area from 7 00 P m to 11 00 P m. and Dems Leger as the "FIrst Floor Runner" from 7 00 a.m to 7 00 P m. The Runner from 7 00 P m to 11 00 P m. was Randy BaldellI The Runner the eVIdence mdIcates, IS the CorrectIOnal Officer responsible for escortmg mmates to and from theIr cells and assIstmg WIth meal delIvery as well In thIS regard, the log book for October 5th records several mstances of mmates bemg escorted to and from theIr cells m "B" Area on the #3 ShIft (between 6 50 p.m and 1043 p.m ) whIch would have reqUIred the presence of the Runner As well, Mr Parent acknowledged that, partIcularly as October 5th was a weekend ShIft, the Runner would have been In "B" Area assIstmg WIth meal delIvery mcludmg supper at around 430 pm In any event, after revIewmg the documentatIOn, Mr Parent concluded that there was a possIbIlIty that the allegatIOns agamst the Gnevor were founded, as the Complamant was housed m 4 Corndor where the Gnevor was aSSIgned for a penod of tIme on October 5th AccordIngly he decIded to reVIew the complamt and proceed WIth the mtervIew ofMs P The IntervIew WIth the Complamant took place at the Sudbury DIstnct JaIl on October 9th Accordmg to Mr Parent, when the ComplaInant arnved for the mtervIew she submItted her 9 complamt, whIch she had prepared at hIS request. Mr Parent testIfied that he set aSIde the complamt and took a statement from the Complamant, whIch he wrote out for her sIgnature ThIS statement reads, m ItS matenal portIOn, as follows What would you lIke to report? ThIS IS about a comment from an officer called DENE L I Said to hIm I'm SIck WIth hot & cold sweats I was m a mghtgown & he Said 'take It off WIth a smIrk on hIS face Before lockup on October 05/97 he came to my cell & asked me where I hung out at. I Said I don't go anywhere because of school Later he began talkmg to me about classes, programs & Said I could bnng my text m & then Said 'Do you go to TreVI's' (no) meet at 9 oclock [sic] at TrevI's Monday mght (Oct 6) He later came back & Said make that 11 pm He told me he lIved behmd Miracle Mart on Lasalle [sic] not far from the TrevI's I felt mtImIdated & unsure of hIm & dId not know what to do I dId say yes to hIm Just to get nd of hIm Although It IS not clear what was wntten underneath the name, exammatIOn of the Complamant's statement reveals that the reference to "Dene L " m the first lme was wntten over somethmg whIch had been erased In any event, Mr Parent testIfied that, when the Complamant completed the statement, he asked If she was sure of the name of the CorrectIOnal Officer because there was no Dene L employed at the JaIl, although there was an employee by the name of Dene Holmes In thIS regard, Mr Parent testIfied that CorrectIOnal Officers were gIven a chOIce as to how they WIshed to have theIr names dIsplayed on theIr name tags, whIch must be worn at all tImes when on duty and the Gnevor chose to be IdentIfied by hIS first name and last ImtIal, I e Dene H. (rather than hIS surname and first ImtIal) Accordmgly as the Gnevor was the only Dene workIng at the JaIl, Mr Parent told the Complamant that the CorrectIOnal Officer m questIOn was Dene Holmes However as mdIcated, the duty roster mdIcates that Dems Leger was workmg m the area as the FIrst Floor Runner from 7 00 a.m to 7 00 P m. on October 5th and Mr Parent acknowledged that hIS name tag mIght have read "Dems L " Nevertheless, Mr Parent never conSIdered that the Complamant's reference to "Dene L " mIght Just as well have been Dems Leger as Dene Holmes In any event, Mr 10 Parent asked the Complamant to read the statement and sIgn If she agreed wIth ItS contents, whIch she dId. Followmg the mtervIew Mr Parent provIded a copy of both the complamt and the statement gIven by Ms P to Mr Chenard, who made the decIsIOn to refer the matter to the IIU When the complamt was receIved m the IIU It was assIgned to Semor InvestIgator Bnan Scott. Mr Scott testIfied that he receIved a copy of the complamt, as well as the letter of referral to the Manager of the IIU Renata Kozarov He began hIS mvestIgatIOn by conductmg a senes of mtervIews, the first of whIch was wIth the Complamant. As the Employer mdIcated that It was not relymg on the notes of thIS mtervIew as well as a follow-up mtervIew wIth the Complamant for the truth of theIr contents, the Umon wIthdrew ItS obJectIOn to the admIsSIbIlIty of the notes Accordmgly the Board has conSIdered the notes only to the extent that they were addressed by the Complamant m her oral eVIdence Mr Scott testIfied that he arranged to meet wIth the Complamant at the NatIve FnendshIp Centre on October 29th At that tIme, although she told Mr Scott that, when the Gnevor asked her to take her clothes off, he had a "flIrtmg look" on hIS face, m cross-exammatIOn, she was unable to explam what led her to that conclUSIOn. She also told Mr Scott that the Gnevor made the offenSIve comment (askmg her "to take her clothes off') at around 7 00 P m or 8 00 p.m on October 5th whIch was a Sunday at a tIme when she understood he was the only Officer on duty Another relevant pomt IS that the Complamant told Mr Scott that It was before lockup when the Gnevor asked her to meet hIm at TrevI's Restaurant and that he came back a couple of mmutes later (whIch mIght have been before or after lockup) to change the tIme of the meetmg. Although the Complamant claimed that she was "shocked" by the mVItatIOn, she seemed to suggest that, as an mmate, she felt she had no nght to refuse In any event, she claimed that It took untIl the next day at school for her to appreCIate the Impropnety She, therefore, dId not show up at TrevI's Restaurant that mght, as 11 prevIOusly arranged. She acknowledged, however that the Gnevor never asked why she had not shown up (although It was unclear from the eVIdence whether she ever saw the Gnevor agam) Further the Complamant told Mr Scott that the Gnevor had mdIcated that he lIved behmd Miracle Mart, whIch IS across the street from TrevI's Restaurant on Lascelles Blvd. Fmally the Complamant appnsed Mr Scott of two mCIdents, one mvolvmg an allegatIOn that the Gnevor came to her cell to retneve CIgarettes for her common-law husband, who was mcarcerated on another range, and the other that the Gnevor watched her gettmg undressed. As these mCIdents were not relIed upon as the basIs for dISCIplIne and as the detaIls of the mCIdents, partIcularly m relatIOn to the Gnevor's demeanour dunng the first mCIdent, are hIghly preJudICIal and of lIttle probatIve value, they wIll be referred only to the extent necessary to understand the allegatIOns m thIS case A follow-up mtervIew wIth the Complamant took place at the NatIve FnendshIp Centre on December 19th Although the Complamant ImtIally testIfied that she could not recall thIS mtervIew she subsequently confirmed excerpts from the notes of the mtervIew whIch she had SIgned. SpeCIfically she acknowledged that she had, on occaSIOn, had dnnks at TrevI's Restaurant, whIch contradIcts her earlIer eVIdence to the OppOSIte effect. She also told the InvestIgator that the CorrectIOnal Officer's name tag Said "Dene" and, although she notIced that the last ImtIal was "L" Mr Parent told her that the last name was Holmes As well, although the Complamant mdIcated that she called home on Sunday mght (at 7 36 p.m accordmg to the log book entry) she demed that she called home on the mght of the mVItatIOn to TrevI's Restaurant. Almost ImmedIately however Ms P resIled from thIS pOSItIOn, testIfymg that she, m fact, called home on the mght m questIOn, and that the call was made subsequent to both the offenSIve remark and the mVItatIOn to TrevI's However she claimed that she dId not appnse her aunt, WIth whom she lIved, of her encounter WIth a CorrectIOnal 12 Officer as her aunt was "over mebnated" Fmally although the Complamant acknowledged that, once she knew the Gnevor's name (whIch had been gIven to her by Mr Parent) she could have looked up hIS address and telephone number m the telephone dIrectory she vehemently demed that thIS was how she found out where the Gnevor lIved. The second mtervIewee was the Gnevor Pnor to mtervIewmg the Gnevor Mr Scott reVIewed hIS personnel file For hIS part, the Gnevor testIfied that he first learned of the allegatIOns m a telephone conversatIOn wIth Mr Scott on October 29th At that tIme, the Gnevor was adVIsed that an mmate by the name of SP had made allegatIOns of sexual Impropnety agamst hIm, that the allegatIOns were bemg mvestIgated and that he would be receIvmg wntten notIficatIOn of the allegatIOns As well, an mtervIew was scheduled for November 4th to afford the Gnevor an opportumty to respond to the allegatIOns Some tIme between October 29th and November 4th the Gnevor receIved documentatIOn contammg the name of the Complamant and detaIls of the allegatIOns of sexual Impropnety namely that on October 5th he had asked the Complamant to take her clothes off and also asked her to meet hIm at a restaurant outsIde the mstItutIOn the followmg day The Gnevor testIfied that he was surpnsed at the allegatIOns and so he attempted to locate the log book to venfy where he had been workmg on October 5th However the log book was not acceSSIble Moreover hIS co-workers could not recall where he had been workmg that day Nevertheless, the Gnevor acknowledged m the mtervIew of November 4th that he had worked m "B" Area from 7 00 p.m to 11 00 P m. on October 5th (although he had ongmally been scheduled to work m another area, where he would not have had contact wIth female mmates) However he mamtamed that he dId not recall the Complamant as havmg been an mmate m "B" Area. In thIS regard, the Gnevor testIfied that although the Complamant's name would have been on the DIsaSSOCIatIOn BehavIOur Report and on a card outSIde her cell, he dId not have suffiCIent contact WIth her to know 13 who she was As well, the Gnevor claimed that he dId not recall the Complamant from an occaSIOn around the mIddle of October when he went to her cell to request CIgarettes for her common-law husband. On the Gnevor's verSlOn of events, the cell was not suffiCIently well lIt for hIm to have seen her clearly whereas the Complamant claimed that, when the Gnevor came to her cell, the lIghts came on, whIch suggests that the Gnevor would have been able to get a good look at her Nevertheless, the Gnevor dId recall havmg talked wIth an mdIvIdual (whom he later found out was the Complamant) about her bemg a student at Cambnan College and about the procedure to be followed m bnngmg her school books mto the mstItutIOn. However he demed havmg looked mto the Complamant's cell for five mmutes (or so) before saymg "goodmght" to her Apart from hIS personal knowledge the Gnevor testIfied that he understood from hIS co-workers that the Complamant was an mtermIttent mmate, who was "dry celled" (whIch IS a procedure under whIch water IS turned off m the cell of an mmate suspected of havmg swallowed contraband or placed It m a bodIly onfice m order to force ItS expulSIOn from the mmate's body) upon admIsslOn to the JaIl on weekends, as she was suspected of bnngmg drugs mto the mstItutIOn. Mr Parent testIfied, however that he would have gIven the order for dry ceilIng; that he gave no such order m respect of Ms P and, further that there would have been no reason for such an order The Gnevor was also asked when he had worked on October 6th Although the Gnevor had no mdependent recollectIOn of the matter hIS records, whIch he kept m hIS own calendar mdIcate that although he was ongmally scheduled to work from 11 00 p.m on October 6th to 700 a.m on October ih he changed ShIftS and, m fact, worked from 3 00 p.m to 11 00 pm. on October 6th At the tIme of the mtervIew however the Gnevor could not recall when the ShIft had been changed or why the change was made On reflectIOn, however he testIfied m these proceedmgs that he changed ShIftS WIth another CorrectIOnal Officer by the name of Perry Caverson and that the change was most 14 probably arranged on the rught of October 5th Although the Gnevor dId not recall the CIrcumstances under whIch the change was made he testIfied that ShIft changes were usually arranged by mutual agreement between two Officers and approved by the ShIft SupervIsor In thIS case, although the Gnevor dId not recall the specIfic conversatIOn WIth Mr Caverson, he recalled that Mr Caverson InItIated the change In order to aSSIst WIth a hockey team he coached. Moreover although the Gnevor could not recall whether Mr Caverson spoke to hIm In person or over the telephone, the Gnevor suggested that the ComplaInant could have overheard the conversatlOn by eIther means Had Mr Caverson telephoned hIm, the Gnevor testIfied that the call would have been made to the telephone at the Guard StatIOn In "B" Area and, as the door leadIng to the cells IS generally left open, he assumed that an Inmate In one of the first four cells (the ComplaInant was In the second cell) would have been able to hear the conversatlOn. In fact, the Gnevor was of the VIew that, as he has a loud VOIce, a telephone conversatIOn could have been heard by an Inmate In the eIghth or nInth cell On the other hand, had Mr Caverson spoken to the Gnevor In person, the conversatIOn most probably would have taken place m the area of the Guard StatIOn, whIch IS Just InSIde the block door whIch also tends to be left open after 5 00 p.m (although the Gnevor acknowledged that It was an InfractIOn to leave the block door open) The Gnevor expressed the OpInIOn that a conversatIOn In thIS area would have been overheard more easIly than a telephone conversatlOn. Moreover as the Gnevor understood from Mr Scott that the ComplaInant had referred to the 24-hour clock, whIch IS not commonly referred to outsIde the JaIl or SImIlar InstItutIOn, the Gnevor assumed that she must have overheard hIS conversatIOn WIth eIther Mr Caverson or Mr St. Jean, whIch would explaIn the fact that she seemed to know about the ShIft change In any event, the Gnevor's eVIdence In thIS regard IS purely conJecture, as he acknowledged that he dId not recall the conversatIOn WIth Mr Caverson or Mr St. Jean and, regrettably Mr Caverson cannot aSSIst WIth the matter as he has developed amneSIa. 15 Although Mr St. Jean was called as a WItness, he appeared to have no mdependent recollectIOn of thIS matter Nevertheless, the occurrence report, whIch he completed on October 28th mdIcates that he was scheduled to work from 7 00 p.m on October 5th to 7 00 a.m on October 6th and that some tIme dunng that shIft, he approved a request by Mr Caverson for a ShIft exchange WIth the Gnevor for the followmg day As a result of thIS exchange, the Gnevor would have been workmg from 3 00 P m. to 11 00 P m. on October 6th (instead of 11 00 P m. on October 6th to 7 00 a.m. on October 7th) The report further mdIcates that Mr St. Jean telephoned the Gnevor to venfy that he was m agreement WIth the change Although Mr St. Jean could not recall whether Mr Caverson requested the ShIft change over the telephone or m person, he acknowledged m these proceedmgs that the request mIght have been made whIle he was on hIS rounds As well, Mr St. Jean acknowledged that It was "possIble" he had spoken to the Gnevor about the ShIft change whIle he was on hIS rounds However the occurrence report (whIch IS the only relIable eVIdence as Mr St. Jean had no mdependent recollectIOn of these events) mdIcates that Mr St. Jean receIved confirmatIOn of the Gnevor's agreement to the ShIft change over the telephone In thIS regard, Mr St. Jean acknowledged that although an mmate m the first cell mIght have been able to overhear the telephone conversatIOn, m thIS case, she would only have been able to hear the Gnevor's end of the conversatIOn, the substance of whIch was, "It does not matter to me whIch ShIft It IS" Further the Gnevor mdIcated m the mtervIew that he lIved 10 mmutes north of Miracle Mart across from TrevI's Restaurant on Lascelles Blvd. Although he was surpnsed (and somewhat concerned) to dIscover that the Complamant knew where he lIved, he acknowledged that he mIght have told her m course of conversatIOn, that he lIved near Cambnan College or that she mIght have overheard hIm tellIng another CorrectIOnal Officer that he lIved behmd Miracle Mart. However as he 16 understood from Mr Scott's questIOns that the Complamant knew hIS address (and not Just the area m whIch he lIved), he suggested that she could have found hIS address m the telephone dIrectory Fmally the Gnevor demed havmg asked Ms P to meet hIm at TrevI's Restaurant (or anywhere else, for that matter) The Gnevor further testIfied that he assumed from the allegatIOn that he had asked the Complamant to take her clothes off (whIch he demed) that the addItIOnal allegatIOn that he asked her to meet hIm at a restaurant was for the purpose of a sexual encounter However the Gnevor said, m effect, that he IS not attracted to natIve women (he assumed from her surname that the Complamant was natIve) and so he would not have asked her to take her clothes off or meet hIm at a restaurant, as he could have seen better-Iookmg women at a "stnp club" The Gnevor testIfied that he dId not mtend thIS remark to be dIscnmmatory but rather to suggest that, gIven hIS sexual preference, he would not have ImtIated a sexual encounter WIth a natIve woman, partIcularly m a publIc place, such as TrevI's Restaurant, where he knew the owners and some of the clIentele In partIcular he mdIcated that he had been recently marned and that hIS stepson frequented TrevI's Restaurant. Accordmgly he suggested that there was too much at stake for hIS mamage for hIm to have taken a woman to a publIc place where he could have encountered hIS stepson. As well, he suggested that TrevI's attracted an older clIentele and, further that a natIve woman would have stood out m that settmg. In addItIOn, gIven the ShIft change, whereby he worked from 3 00 pm to 11 00 p.m on October 6th he stIll would have been m umform had he met the Complamant at TrevI's at 11 00 p.m Fmally the Gnevor testIfied that he dId not know of any reason why the Complamant would have fabncated allegatIOns of sexual Impropnety agamst hIm. He further testIfied that there had never been any complamts of thIS nature agamst hIm and that, although he had been offered sexual favours m exchange for allowmg female mmates to smoke m segregatIOn, whIch IS a non- smokmg area, he always refused these offers As to the Complamant, m partIcular the Gnevor 17 testIfied that he dId not know at the tIme of the mtervIew that she had applIed for the temporary absence programme ("TAP") In thIS regard, the eVIdence mdIcates that some tIme pnor to the alleged mfractIOns, the Complamant applIed for a temporary absence programme known as "ACE" (AlternatIve CustodIal EnVIronment) whIch would have allowed her to serve the balance of her sentence m the commumty rather than m Jail It would appear that the Gnevor made two applIcatIOns for ACE, the first, for one weekend only covered the weekend of October 31st to November 3rd That applIcatIOn, whIch would appear to have been approved on October 30th refers to "speCIal CIrcumstances" whIch the Employer acknowledged was a reference to the ongomg mvestIgatIOn of the Gnevor m relatIOn to the allegatIOns m thIS matter The second applIcatIOn, whIch was also approved, covered the penod from November 7th to December 14th whIch was the end of the Complamant's sentence, takmg mto account statutory remISSIOn. As a result of the approval of her ACE applIcatIOn, the Complamant was not reqUIred to return to the Sudbury DIstnct JaIl at any tIme subsequent to her release on October 2ih At the conclUSIOn of the mtervIew whIch lasted about an hour the Gnevor was asked to read the statement, whIch Mr Scott had prepared for hIS SIgnature, and ImtIal each page Subsequently the Gnevor asked for a few days off Upon hIS return to work, he requested that he not be scheduled to work WIth female mmates However hIS request was demed, as It was ImpOSSIble to guarantee that he would not come mto contact WIth female mmates Nevertheless, the Employer agreed that he would not be reqUIred to guard the Complamant (although It would appear that by thIS tIme she was no longer servmg tIme m Jail) Moreover It IS unclear whether the Gnevor guarded the Complamant at any tIme between October 6th when she was released from Jail at the end of the weekend when these allegatlOns arose, and October 2ih whIch would appear to have been her last day mJaII m regard to thIS penod ofmcarceratIOn. 18 The eVIdence further mdIcates that the Gnevor telephoned Mr Scott the day after the mtervIew (November 5th) The purpose of the telephone call was to get some mdIcatIOn of what the Complamant had Said m her mtervIew and to reIterate that he had not asked the Complamant (or any other mmate) to take her clothes off or meet hIm at TrevI's Restaurant on October 6th and, further that he had not gone to TrevI's on October 6th (although he had allegedly arranged to meet the Complamant there at that tIme) Followmg the telephone conversatIOn wIth Mr Scott on November 5th the Gnevor made efforts to recall where he had gone after work on October 6th (the date on whIch It IS alleged he arranged to meet the Complamant at TrevI's Restaurant) After talkmg wIth two of hIS co-workers, Randy BaldellI and Terry PhytIla, the Gnevor remembered that he had dnven to Don Cherry's Sports Bar ImmedIately after work. The eVIdence m thIS regard mdIcates that Mr BaldellI called the JaIl and left a message WIth the Control Officer Mr PhytIla, who relayed the message to the Gnevor to meet Mr BaldellI at Don Cherry's after work. Mr BaldellI testIfied that as he had been dnnkmg, he needed a nde home The eVIdence further mdIcates that, by arrangement WIth hIS replacement, the Gnevor left work 15 mmutes early and arnved at Don Cherry's (a 10-mmute dnve) before 11 00 p.m When he got there, the Gnevor was stIll m umform After about 45 mmutes, the Gnevor left Don Cherry's and went to Casey's, another bar m the local area, to talk to the owner about mstallIng a bar top VIdeo machme EVIdently the Gnevor has had a busmess mstallIng amusement machmes smce 1988 In any event, the Gnevor testIfied that he got to Casey's Just before mIdmght. He clearly remembered thIS as bemg a Monday as It was Monday football mght and the employees were outfitted lIke football players In any event, after waItmg for about 15 mmutes, the Gnevor spoke WIth the owner Mike ReId, and arranged for delIvery of a VIdeo machme the followmg day He then returned to Don Cherry's at about 12 15 a.m and drove Mr BaldellI home At no tIme, however dId he go to TrevI's Restaurant that mght. 19 The followmg day (October 7th) the Gnevor drove Mr BaldellI to pIck up hIS truck from the parkmg lot of Don Cherry's, where he had left It the mght before Mr BaldellI stayed at Don Cherry's whIle the Gnevor went on to Casey's to mstall a VIdeo machme Mr BaldellI followed hIm to Casey's a few mmutes later Although Mr BaldellI stayed at Casey's, the Gnevor left as soon as he had fimshed programmmg the machme Once the Gnevor recalled where he had gone after work on October 6th he gave thIS mformatIOn to Mr Scott m a telephone conversatIOn on November 6th Although the Gnevor proVIded Mr Scott WIth the names of the mdIvIduals he had been WIth on the mght of October 6th he dId not know whether Mr Scott took steps to venfy hIS account. In fact, Mr Scott testIfied that he mtervIewed Messrs ReId and BaldellI, but theIr mput dId not mform hIS conclUSIOns WIth respect to thIS matter Some tIme later (most probably m late November or early December) the Gnevor had a conversatIOn WIth AS an mtermIttent mmate, who had been housed m "B" Area for perhaps as long as a year The Gnevor testIfied that he often talked WIth Ms S who had been a ProbatIOn Officer m IroquOIS Falls On thIS partIcular day the Gnevor testIfied, Ms S told hIm that she belIeved that Ms P mIght have been bnngmg drugs mto the JaIl for two other mmates m 4 Comdor and that Ms P mIght have been seekmg revenge agamst hIm because he blocked the transfer of newspapers, whIch was the means by whIch the drugs were transferred. The Gnevor professed to be "amazed" at Ms S 's story and asked her to wnte It down, whIch she dId. In regard to thIS matter the Gnevor testIfied that mtermIttent mmates were known to carry drugs mto the JaIl and to transfer them by placmg them m newspapers and passmg the 20 newspapers from cell to cell In order to prevent the transfer the Gnevor testIfied that he refused to allow newspapers to be passed between cells Although the Gnevor had no mformatIOn that Ms P had attempted to pass newspapers between cells, as prevIOusly mdIcated, he understood that she was m the segregatIOn umt as she was suspected of bnngmg drugs mto the mstItutIOn. However the eVIdence mdIcates that mtermIttent mmates were generally segregated from the mam populatIOn to reduce the nsk of contraband (includmg drugs) bemg brought mto the mstItutIOn, IrrespectIve of whether It was suspected that a partIcular mtermIttent mmate was transportmg drugs In any event, Ms S purportedly stated that she belIeved that Ms P mIght have been bnngmg drugs mto the mstItutIOn and that Ms P would do somethmg to exact revenge on the Gnevor for mterfenng wIth the transfer of drugs Although the Gnevor conceded that he dId not know how Ms S would have come upon thIS mformatIOn (as he had not dIscussed the matter wIth her and as her cell was at the other end of the cell block from the Complamant) he suggested, m effect, that mformatIOn of thIS sort cIrculated wIthm the JaIl In any event, on or about December loth the Gnevor contacted Mr Scott and suggested that he talk wIth Ms S as she had some mSIght mto Ms P' s motIvatIOn for ImtIatmg the complamt agamst hIm. He also proVIded Mr Scott wIth a copy of the note Ms S had gIven hIm Mr Scott testIfied that he mtervIewed Ms S but consIdered her mput to be Irrelevant, as she dId not purport to know anythmg. In addItIOn, Mr Scott mtervIewed Mr Caverson and Ms PelletIer but dIscounted theIr mput as well Subsequent to the conclUSIOn of the mtervIews, Mr Scott prepared a report of hIS mvestIgatIOn, whIch he submItted to hIS Manager The pnncIpal findmg of the report was that the Gnevor had commItted a sexual Impropnety by askmg the Complamant to take her clothes off and by arrangmg to meet her at TrevI's Restaurant. In support of thIS findmg (speCIfically the arrangement to meet the Complamant outSIde the mstItutIOn) the InvestIgator relIed on the fact that, even pnor to the ImtIal mtervIew wIth Mr Parent on October 9th the Complamant knew where the Gnevor lIved m 21 relatIOn to Miracle Mart. As to thIS matter Mr Scott dIscounted the pOSSIbIlIty that the Complamant could have found out where the Gnevor lIved by lookmg m the telephone dIrectory as she would have to have known hIS surname m order to have used the dIrectory It would appear however that she dId not know the Gnevor's surname untIl Mr Parent "let It slIp" m the course of the mtervIew Moreover even If she had known hIS surname, there were three lIstmgs for "D Holmes" (includmg one WIth a mIddle ImtIal) m the dIrectory and, m order to have pIcked the correct lIstmg, the Complamant would have to have known whIch one was m the area of TrevI's Restaurant, whIch Mr Scott conceded she could have known had she been sufficIently famIlIar WIth the area or looked at a map However he conSIdered It unlIkely that the Complamant would have found out where the Gnevor lIved m thIS way Mr Scott also relIed on the fact that the change m the tIme at whIch the Gnevor arranged to meet the Complamant was conSIstent WIth the Gnevor's ShIft change for October 6th Regardmg the ShIft change, Mr Scott dId not accept that the Complamant could have overheard the conversatIOn between the Gnevor and Mr Caverson. As well, the InvestIgator found the Complamant's eVIdence to be more credIble than that of the Gnevor His conclUSIOn, as set out at pages 8 and 9 of hIS report, IS as follows After consIdenng all the eVIdence It IS concluded, on a balance of probabIlItIes and based on clear and convmcmg eVIdence, that the respondent [the Gnevor] commItted a sexual Impropnety m that he asked the complamant to take her clothes off on October 5 1997 It IS also concluded that the respondent commItted a sexual Impropnety by arrangmg to meet the complamant at TrevI's Although there IS no dIrect eVIdence as to the purpose of such a meetmg, the only reasonable mterpretatIOn, gIven the facts of thIS case, IS that the respondent was askmg the complamant to meet hIm WIth a VIew to a romantIC or sexual encounter As well, It IS concluded that the respondent's comment to the mvestIgator ('Why would I, a mamed man, want to meet, I presume a NatIve, m a publIc restaurant no matter what tIme of day or mght') to be a dIscnmmatory remark based on race, contrary to the WDHP DIrectIve The mvestIgatIve report was subsequently proVIded to the Supenntendent, Mr Chenard After revIewmg the report, Mr Chenard wrote to the Gnevor on January 27 1998 advIsmg 22 of the receIpt of the report and arrangmg a meetmg for February 3rd to dISCUSS the findmgs The Gnevor attended the meetmg wIth hIS Umon RepresentatIve, Paul Lachance, and the OPSEU Staff RepresentatIve, Paul Slee Also m attendance was the Deputy Supenntendent of OperatIOns, Enzo Pedron. The purpose of the meetmg, accordmg to Mr Chenard, was twofold (1) to appnse the Gnevor of the findmgs of the IIU mvestIgatlOn m respect of the allegatlOns agamst hIm, and (2) to gIve hIm an opportumty to respond to the allegatIOns As to the actual report, Mr Chenard testIfied that although he was permItted to reveal ItS contents, as the report was confidentIal, hIS mstructIOns from the Deputy Mimster's office were not to make copIes of the report. Accordmgly although Mr Chenard read excerpts from the report, he dId not allow the Gnevor or hIS Umon RepresentatIves to peruse the report. Moreover although the Gnevor and hIS Umon RepresentatIves requested a copy of the report at the meetmg and subsequently by means of an applIcatIOn under the Freedom of Information and Protection of Privacy Act It was not untIl these proceedmgs that the report was finally produced. In any event, as to the content of the mvestIgatIve report, Mr Chenard testIfied that he told the Gnevor that the allegatIOns, namely that the Gnevor had asked an mmate to take her clothes off; that he had arranged to meet her outsIde the mstItutIOn, and that he had made a dIscnmmatory remark to the InvestIgator had been substantIated by the IIU He then questIOned the Gnevor m respect of these allegatIOns, namely how the mmate could have gotten hIS name and address as well as mformatIOn regardmg hIS ShIft change for October 6th Although hIS responses dId not satIsfy Mr Chenard, the Gnevor suggested, among other matters, that the mmate could have gotten hIS address from the telephone dIrectory However Mr Chenard suggested that It would have been dIfficult to locate the Gnevor m the dIrectory WIthout knowmg hIS address 23 As to the ShIft change the Gnevor also suggested that the Inmate mIght have overheard hIS conversatIOn WIth another CorrectIOnal Officer or WIth the ShIft SupervIsor Mr St. Jean. AccordIng to Mr Chenard, however Mr St. Jean's occurrence report IndIcates that he telephoned the Gnevor about the ShIft change and Mr Chenard suggested that It would have been dIfficult for an Inmate to have overheard a telephone conversatIOn (or even a face-to-face conversatlOn between two Officers) as there was a great deal of background nOIse (notably the ventIlatlOn system, teleVISIOn sets, etc ) In thIS regard, Mr Chenard testIfied that It IS even dIfficult for an Officer on rounds to converse WIth an Inmate In segregatIOn, as the Officer must speak loudly enough to be heard through a solId door or must bend down and speak through the food hatch In order to be understood. Although Mr Chenard acknowledged that a CorrectIOnal Officer had been counselled for confrontmg her SupervISor about an aSSIgnment In an area where she could be overheard by mmates, the detaIls of the InCIdent, InvolVIng another CorrectIOnal Officer were unclear Nevertheless, of relevance for thIS case, It seems clear that the Officer was yellIng, rather than speakIng In a conversatIOnal tone and that the conversatIOn took place In a corndor In whIch the cells were secured WIth bars, rather than steel doors LeavIng aSIde the lIkelIhood that a conversatIOn mIght have been overheard, Mr Chenard suggested that, In thIS case, the Inmate's InformatlOn about the ShIft change was too speCIfic to have been gleaned In thIS manner FInally although the Gnevor acknowledged that he had made the raCIal comment attnbuted to hIm, he stated that he dId not Intend the comment to be dISCnmInatory There was also some dISCUSSIOn as to the Gnevor's attempt to obtaIn CIgarettes from the ComplaInant for her common-law husband. However that matter was not pursued as a baSIS for dISCIplIne At the conclUSIOn of the meetIng, although the Gnevor was gIven an opportumty to make addItIOnal comments, he chose not to do so The Gnevor was then adVIsed that a deCISIOn would be made regardIng dISCIplInary actIOn, If any to be taken. 24 Subsequently Mr Chenard testIfied, he revIewed the mvestIgatIve report, as well as the mformatIOn provIded by the Gnevor at the February 4th meetmg. Although the Gnevor's conduct was vIewed as bemg of a senous nature, whIch contravened Mimstry polIcIes and ConflIct of Interest GUIdelInes, Mr Chenard testIfied that he revIewed the Gnevor's work record to determme If there was any basIs upon whIch to mItIgate the penalty of dIscharge However he found nothmg to mItIgate the penalty In the result, the letter dated February 11 1998 (reproduced on the first two pages of these reasons) was sent termmatmg the Gnevor's employment. Decision In JustIfymg the actIOn to termmate the Employer relIed on three pnncIpal allegatIOns, namely that the Gnevor commItted a sexual Impropnety on October 5 1997 by (1) askmg the Complamant to take her clothes off and (2) mVItmg her to meet hIm at a restaurant outsIde the mstItutIOn. As well, It IS alleged that the Gnevor made a dIscnmmatory remark to the IIU InvestIgator to the effect that he would not want to be seen m publIc WIth a natIve woman. By way of background, the eVIdence mdIcates that the Complamant was an mtermIttent mmate at the Sudbury DIstnct JaIl who accordmg to the Warrant of CommIttal, was sentenced to a 90-day Jail term, whIch she began to serve on Fnday September 5 1997 In accordance WIth the terms of her mtermIttent sentence, the Gnevor was scheduled to attend at the JaIl on weekends, from 7 00 P m. on Fnday to 6 00 a.m on Monday On the weekend of October 3rd the Complamant was assIgned to 4 Corndor whIch IS a segregatIOn umt m "B" Area, located on the first floor The Umon suggested that the Complamant was m segregatIOn as she was suspected of bnngmg drugs mto the mstItutIOn and, further that on the weekend m questIOn, she was bemg "dry celled" (whIch was 25 described as a procedure desIgned to force the expulSIOn of drugs and other contraband from an mmate's body) However the eVIdence does not support the conclUSIOn that the Complamant was bemg "dry celled" Mr Parent testIfied that he had the authonty m hIS role as Secunty Manager to gIve the order for "dry ceilIng" but that no such order was gIven m respect of Ms P In fact, he stated that there would have been no reason to have gIven such an order m her case Moreover none of the documentatIOn m relatIOn to Ms P supports the conclUSIOn that she was bemg "dry celled" Furthermore, there was no credIble eVIdence upon whIch to conclude that the Complamant was m segregatIOn because of concerns about her bnngmg drugs mto the mstItutIOn. In fact, the only eVIdence whIch purports to ImplIcate Ms P m thIS regard IS Ms S's note, whIch suggests that Ms P might have been bnngmg drugs mto the mstItutIOn. Leavmg aSIde ItS hearsay nature, thIS note IS speculatIve at best. In any event, the eVIdence mdIcates that mtermIttent mmates were generally segregated from the mam populatIOn m order to reduce the nsk of contraband (drugs, among other proscnbed substances) bemg brought mto the mstItutIOn IrrespectIve of concerns m relatIOn to any partIcular mtermIttent mmate As to the speCIfic allegatIOns, the Complamant testIfied that on a Saturday (whIch other eVIdence mdIcates was October 4th) she was not feelIng well She further testIfied that, upon complammg of fever the CorrectIOnal Officer on duty told her "to take her clothes off' Although the Complamant testIfied that when he made thIS remark, the CorrectIOnal Officer had a "flIrtatIOUS look m hIS eyes" m cross-exammatIOn, she was unable to explam what led her to that conclUSIOn. In any event, the Complamant testIfied that as a result of the CorrectlOnal Officer's remark, she felt "degraded as a woman" She also testIfied that the remark was made "toward evemng, before suppertIme" (suppertIme m segregatIOn bemg at about 4 30 p.m ) and that the CorrectIOnal Officer lIngered m the area of her cell after makmg thIS remark. The Complamant further testIfied that some tIme later the CorrectIOnal Officer returned to her cell and ImtIated a conversatIOn, whIch culmmated 26 m an mVItatIOn to meet hIm outsIde the mstItutIOn (specIfically at TrevI's Restaurant on Lascelles Blvd.) at 9 00 P m. on Monday October 6th Although the Complamant testIfied that she dId not know "what to make" of the mVItatIOn, she agreed to meet the Officer outsIde the mstItutIOn. Some tIme before 11 00 P m. the Officer returned to the Complamant's cell and changed the meetmg tIme from 900 p.m to 11 00 p.m on Monday In complIance wIth the terms of her mtermIttent sentence, the Complamant was released from Jail at around 5 20 a.m on Monday October 6th She testIfied that, some tIme dunng the day she came to apprecIate the Impropnety of the CorrectIOnal Officer's mVItatIOn and, therefore, deCIded agamst meetmg hIm at TrevI' s Restaurant at 11 00 P m as prevIOusly arranged. The followmg day (October ih) the Complamant enlIsted the assIstance of Laura PelletIer a Court Worker wIth the NatIve FnendshIp Centre, m reportmg the mteractlOn wIth the CorrectIOnal Officer (includmg askmg her to take her clothes off and askmg her to meet hIm outsIde the mstItutIOn) to the offiCIals of the Sudbury DIstnct JaIl Her complamt was referred to Mr Parent. After outlInIng the nature of her complamt, Ms P prepared a wntten complamt at Mr Parent's request. Notably the complamt IdentIfies the CorrectIOnal Officer mvolved m the mCIdent as "Dene L" Although the Complamant testIfied m these proceedmgs that she dId not know the name of the CorrectIOnal Officer at the tIme of the mCIdent and, further that she had not seen hIS name tag, she told Mr Parent m the telephone conversatIOn on October ih that she thought the name of the CorrectIOnal Officer mvolved m the mCIdent was "Dene" (although It IS unclear whether she was saymg "Dean" or "Dene") or "D somethmg" and that Mr Parent then IdentIfied the Officer as Dene Holmes Accordmgly as she had been appnsed of the IdentIty of the CorrectIOnal Officer at the tIme she prepared her complamt, the Complamant charactenzed the reference to "Dene L" as a "typo" (typographIcal error) Further although the complamt IdentIfies the date of the mCIdent as bemg 27 October 5th whIch was a Sunday the Complamant testIfied that the mCIdent took place on a Saturday Although Saturday of the weekend m questlOn was October 4th the Complamant never referred to thIS date m the course of her eVIdence Fmally m a statement gIven to Mr Parent on October 9th the Complamant IdentIfied the date of the mCIdent as bemg October 5th and, of partIcular note, the name of the CorrectIOnal Officer as "Dene L " Although thIS statement was wntten out by Mr Parent and presented to the Complamant for SIgnature, accordmg to Mr Parent, It was at thIS pomt, and not m the telephone conversatIOn, that he asked the Complamant If she was sure of the name of the CorrectIOnal Officer because, as he explamed, there was no Dene L employed at the mstItutIOn, although there was an employee by the name of Dene Holmes Moreover Mr Holmes's name tag, whIch he was reqUIred to wear at all tImes whIle on duty read "Dene H." Based on the fact that the Gnevor was the only CorrectIOnal Officer at the Sudbury DIstnct JaIl named Dene and that hIS name tag dIsplayed hIS first name and last ImtIal, Mr Parent testIfied that that he concluded that the CorrectIOnal Officer mvolved m the mCIdent was Dene Holmes In my VIew It IS thIS conclUSIOn whIch tamts the entIre case agamst the Gnevor Although the Umon suggested that there was a hIStOry of ammosIty between Mr Parent and the Gnevor and that It was thIS ammosIty whIch motIvated Mr Parent to ImplIcate the Gnevor m thIS mCIdent, m our VIew It IS unnecessary to decIde thIS matter Suffice It to say that Mr Parent made the IdentIficatIOn of the Gnevor and thIS IdentIficatlOn undermmes the Employer's case agamst the Gnevor It should be Said that, although there mIght have been CIrcumstances m whIch the Employer could properly have made the IdentIficatIOn had a sufficIent descnptIOn of the CorrectIOnal Officer been provIded by the Complamant, m thIS case, the descnptIOn provIded was msufficIent for thIS purpose Whether one accepts the Complamant's verSIOn of events, that Mr Parent told her the name of the CorrectIOnal 28 Officer after she IdentIfied hIm as "Dene" (or "Dean" as the eVIdence was contradIctory as to whether she had seen hIS name tag) or "D somethmg" m the telephone conversatlOn on October 7th or Mr Parent's verSIOn, that It was not untIl he saw the name "Dene L " m Ms P' s statement that he proVIded the name the descnptIOn of the Officer proVIded by the Complamant was msufficIent for Mr Parent to have IdentIfied the Gnevor as the CorrectIOnal Officer mvolved m the mCIdent. Although there was no other mdIvIdual by the name of Dene workmg at the JaIl on October 5th the duty roster mdIcates that Dems Leger was assIgned as the FIrst Floor Runner (whIch covers 4 Comdor m "B" Area, whIch IS the area m whIch the Complamant was housed) from 7 00 a.m. to 7 00 p.m on October 5th and It was acknowledged that hIS name tag mIght have read "Dems L " In thIS regard, the eVIdence mdIcates that CorrectIOnal Officers were gIven the chOIce of bemg IdentIfied on theIr name tags by first name and last ImtIal or by surname and first ImtIal Nevertheless, Mr Parent never conSIdered that the reference m the complamt to "Dene L " mIght Just as well have been Dems Leger as Dene Holmes, whIch was an error on hIS part, as It has not been proven that the Gnevor was even on duty m the area at the tIme the mfractIOns are alleged to have taken place More fundamentally It has not been proven when the mfractIOns actually took place The Complamant testIfied m exammatIOn-m-chIef that the mfractIOns took place on a Saturday and, m partIcular that the offenSIve remark (askmg her to take her clothes off) was made "toward evemng, before suppertIme" (suppertIme m segregatIOn bemg at around 4 30 p.m) that the request to meet the CorrectIOnal Officer outSIde the mstItutlOn was made "later toward evemng" and that some tIme before 11 00 p.m the meetmg tIme was changed. In cross-exammatIOn, however she confirmed her statement to the IIU InvestIgator that the mfractIOns took place on Sunday October 5th and, speCIfically that the CorrectIOnal Officer asked her to take her clothes off between 7 00 p.m and 8 00 pm. that he returned to her cell "before lockup" (lockup that mght bemg at 1030 p.m ) to ask her to meet hIm outSIde the mstItutIOn, and that he came back "a couple of mmutes later" (whIch, her 29 eVIdence suggests, mIght have been before or after lockup) to change the meetmg tIme from 9 00 P m. to 11 00 P m. Also m cross-exammatIOn, m the context of revIewmg her wntten complamt, the Complamant testIfied that It was "after lockup" that the CorrectIOnal Officer asked her to meet hIm outsIde the mstItutIOn. Fmally m relatIOn to cross-exammatIOn, the Complamant testIfied that both mfractIOns (the offenSIve remark and the mVItatlOn to meet hIm outSIde the mstItutIOn) took place pnor to a telephone call home whIch, accordmg to the log book, she made at 7 36 p.m on October 5th Accordmgly although October 5th IS consIstent WIth the date IdentIfied on the ongmal complamt and m the statement gIven to Mr Parent, the tImes at whIch the mfractIOns are alleged to have taken place are nfe wIth mconsIstency Further although nothmg turns on the matter the complamt does not actually IdentIfy the remark alleged to have been made by the CorrectIOnal Officer WhIle we appreCIate that mmates m segregatIOn, who have no access to watches or clocks, mIght have dIfficulty pmpomtmg the exact tIme at whIch an mCIdent took place, tIme can be estImated m relatIOn to external events, such as meal tImes Moreover notwIthstandmg the dIfficulty m estImatmg tIme, m thIS case, tImmg IS cntIcal to a determmatIOn of whether the Gnevor was even on duty m the area m whIch the Complamant was housed (eIther as the Area Officer or FIrst Floor Runner) and, therefore would have had the opportumty to commIt the alleged mfractIOns It should be stated that for the purposes of thIS decIsIOn, the Board IS prepared to accept that somethmg untoward happened m relatIOn to the Complamant on eIther October 4 or October 5 1997 and, further that If events occurred as descnbed by the Complamant (i e that she was asked to take her clothes off and mVIted to meet a CorrectlOnal Officer outSIde the mstItutIOn), they constItuted mIsconduct on the part of the perpetrator Accordmgly It IS unnecessary to deal wIth the Umon's submISSIOn that the Complamant fabncated allegatIOns of sexual Impropnety agamst a male CorrectIOnal Officer m order to gam access to the TAP and, therefore, serve the balance of her sentence outSIde the mstItutlOn. However thIS case turns on the IdentIty of the male CorrectIOnal Officer mvolved m the mIsconduct 30 and, unless It can be proven that he was m the area at the tIme of the mIsconduct, the Gnevor cannot be IdentIfied as havmg been the perpetrator NotwIthstandmg a prodIgIOUS effort m thIS regard, the Board has been unable to determme when the mIsconduct (acceptmg, as we have said, that there was mIsconduct) took place If the mfractIOns took place on Saturday October 4th there was no eVIdence to establIsh that the Gnevor was even on duty that day In fact, there was no eVIdence (whether m the form a log book, a duty roster or otherwIse) to establIsh whIch Officers were m "B" Area, eIther m the posItIOn of Area Officer or First Floor Runner on that Saturday And, If the mIsconduct took place the followmg day (Sunday October 5th) then, accordmg to the log book, the Gnevor was the only Officer on duty m the area between 6 50 P m. and 10 42 P m. although Mr Leger was assIgned as the FIrst Floor Runner from 700 a.m to 700 p.m As the FIrst Floor Runner Mr Leger would have been m "B" Area (includmg 4 Corndor where the Complamant was housed) assIstmg WIth meal delIvery at around 430 pm. He also would have been m and out of the area throughout hIS 12-hour ShIft escortmg mmates to and from theIr cells Although the log book for the #3 ShIft for October 5th records several mstances of mmates bemg escorted to and from theIr cells between 6 50 pm. and 1043 p.m the log book for the earlIer ShIft was not produced to enable the Board to assess the actIVIty of the Runner m escortmg mmates pnor to that tIme Nevertheless, the Board's JunsdIctIOn m thIS case IS not to determme whether Mr Leger was the perpetrator of the mIsconduct at Issue, but rather whether the Gnevor was the perpetrator and, m thIS regard, the eVIdence was SImply too unrelIable to come to any conclUSIOn. Accordmgly even acceptmg the Complamant's eVIdence that the mIsconduct (askmg the Complamant to take her clothes off and askmg her out on a date) took place, the Board IS unable to conclude WIth any degree of certItude, that thIS conduct was attnbutable to the Gnevor Certamly the Complamant was unable to IdentIfy the Gnevor as the Officer who commItted the mIsconduct and, as 31 has been mdIcated, the Employer's IdentIficatIOn was defectIve from the outset. Moreover the fact that the Complamant knew that the Officer who had allegedly made the remarks lIved behmd Miracle Mart does not cure the defect. Once Mr Parent IdentIfied the Officer as havmg been Dene Holmes, the Umon suggested that there were a number of ways by whIch the Complamant could have found out where he lIved (or more accurately the general vIcImty m whIch he lIved) mcludmg m course of conversatlOn unrelated to any mIsconduct. In any event, the fact that the Complamant knew the general vIcImty m whIch the Gnevor lIved does not ImplIcate hIm m the mIsconduct, partIcularly as there was no eVIdence as to where Mr Leger (or any other CorrectIOnal Officer for that matter) lIved m relatIOn to Miracle Mart. One IS then left WIth the fact that the change m the meetmg tIme at TrevI's Restaurant comcIded WIth the Gnevor's ShIft change on the day m questIOn (Monday October 6th) However there could have been any number of reasons for the perpetrator to have changed the meetmg tIme and ShIft change IS Just one of them. The Important pomt IS that thIS comcIdence, although perhaps SUSpICIOUS, IS not sufficIent to overcome the fundamental flaw m the Employer's IdentIficatIOn of the Gnevor m the first place Accordmgly the Board finds that the allegatIOn that the Gnevor commItted a sexual Impropnety on October 5 1997 by askmg the Complamant to take her clothes off and by arrangmg to meet her at a restaurant outSIde the mstItutIOn has not been proven. There remams the allegatlOn that the Gnevor made a dIscnmmatory remark to the IIU InvestIgator to the effect that he would not want to be seen m publIc WIth a natIve woman. In fact, the Gnevor admItted haVIng made thIS remark m defence of the allegatlOn that he mVIted the Complamant to meet hIm m a publIc place (TrevI's Restaurant) In thIS context, m whIch the statement was proffered m defence of the Gnevor's actIOns, the statement, whIch mIght be raCIst m another context, was purely exculpatory and cannot form the baSIS for dIscIplIne In the result, the Board finds that no grounds for dISCIplIne eXIsted WIth respect to thIS allegatIOn as well 32 Accordmgly as the partIes were advIsed by decIsIOn dated December 21 2001 the Board finds that the allegatIOns agamst the Gnevor have not been proven. In ItS deCISIOn, the Board dIrected that the Gnevor be remstated forthwIth and remamed seIsed to deal wIth remedIal matters, mcludmg the Gnevor's status upon remstatement. That retentIOn of JunsdIctIOn contmues untIl thIS matter IS finally determmed. DATED AT TORONTO thIS 4th day ofPebruary 2003 .),c~~~_,-^ Maureen K Saltman Vice-Chair