HomeMy WebLinkAbout1988-1530.Diminie and Cochrane.90-02-13
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I-~ ~" ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO
_ _ GRIEVANCE COMMISSION DE
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SETTLEMENT REGLEMENT
BOARD DES GRIEFS
1ao DUNDAS STREET WEST TORONTO, ONTARIO, M5G ,Z8 SUITE 2100 TELEPHONE/TELEPHONE
180, RUE DUNDAS OUEST TORONTO. (ONTARIO) M5G lZ8 BUREAU 2100 (416) 598- 0688
1530/88, 1531/88
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN E"PLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLE"ENT BOARD
BETWEEN:
OPSEU (Diminie and Cochrane)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
BEFORE: J W Samuels Vice-Chairperson
I. Freedman Member
E Orsini Member
FOR THE s. Murray
GRIEVOR: Grievance Officer
Ontario public Service
Employees Union
FOR THB L Oudyk
E"PLOYER: Staff Relations Officer
Ministry of Correctional Services
HEARING: June 8, 1989
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0 AWARD
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On November 5, 1988, sometIme between 200AM and 645AM,
Jean Lepage, a seventeen year old young offender with a very long and
senous crImInal record, unscrewed a small WIndow III hIS room III
Thomson House at the BrooksIde Youth Centre In Cobourg and chmbed
out to freedom. That mght, the two gnevors were on duty m Thomson
House, and dunng the penod mentIOned above they dId not once see any
part of Mr Lepage's body duectly, assummg that the form under the
blanket on the bed was Lepage But at some pomt, the body was replaced
by several pIllows, because that's all that was under the blanket when a
body count was done at shIft change
Followmg an mvestIgatlOn mto the escape of Lepage, Supenntendent
F Szabadka suspended the gnevors for two days WIthOut pay, because they
faIled to adhere to faCIlIty secunty procedures, faIled to mamtam adequate
supervISIon, and contnbuted to the successful escape The gnevors say that
there was not Just cause for thIS dIsciplmary actIOn
The facts In this case are s1ll1ple and are not III dIspute
The BrookSIde Youth Centre conSIsts of SIX reSIdences and other
bUIldIngs, whIch serve as a detentIOn centre before tnal and secure custody
after sentence for some 109 SIxteen and seventeen year old people, who
have committed offences WhiCh, If the offenders were adults, would bnng
sentences of five years or more In November 1988, there were males and
females. Today, there are only males at BrookSIde
In November 1988, a penmeter fence was beIng constructed around
the whole of BrookSIde Today It IS In place.
One of the reSIdences IS Thomson House On the mght III questIOn,
there were thIrteen young offenders there, III the care and custody of the
gnevors Each reSIdent had hIS own room-a SImple space behInd an
unlocked door The WIndows to the outSIde were screwed shut from the
InSIde (It had been deCIded that there was no need to open the wmdows,
because Thomson House was air-condItIoned) Each wmdow consIsted of
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several parts, each part bemg screwed down separately The part whIch
Lepage unscrewed was only ~IX mches hIgh.
Jean Lepage, at seventeen~ standmg 5'6" and welghmg 158 pounds~
was a hardened cnmmal He had been sentenced for two counts of
possesslOn over, three counts of escape custody, dangerous dnvmg~ dnvmg
whIle dIsquahfied, threatemng death, break/enter/theft, threatenlllg, and
sexual assault Whlle III custody m provmclal mstltutlOns, he had been
pUnIshed for escapIng three tlmes, fightmg, commIttmg assault on SIX
separate occaSlOns, damage to property, possesslOn of contraband, and
creatlllg or lllcltmg a dIsturbance He came to BrookSIde first on July 12,
1988, awaltlng a court appearance In Ottawa, and he escaped the next day
He was returned to BrooksIde a month later
The gnevors are Youth ServIce Officers WIth good records Mr
Cochrane had eIght years' servIce, and Mr DIffiIme had one and one-half
years' servIce
The MInIstry's Standards and Procedures reqUIre that Itbody" counts
be taken at least four tImes dunng each twenty-four hour penod "A
'body' count IS defined as a count of Inmates based upon actual Sight of a
body part such as a sleepmg Inmate's head, hand, foot or other part. 11
The Nzght Procedures establIshed by Mr Szabadka at BrookSIde
require rounds of the bedrooms at least tWIce per hour at Irregular
mtervals and a count each time whlCh mc1udes sIghtmg of a part of the
reSIdent's body
The grievors were tramed III the Mmistry's reqUIrements and the
faCIlIty's night procedures They knew that theIr orders were to do a count
on every round, WhICh meant that they had to see a part of each reSIdent's
body tWIce per hour
On the other hand, m practice the Youth ServIce Officers dId not do
such a full "body It count each round. If a reSIdent was covered entirely by
a blanket, WhICh was the case for roughly half the reSIdents each round.
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often the officer would look m the room wIth a flashlIght and study the
lump on the bed to decIde whether or not It was the resIdent under the
blanket. If the officer was satIsfied that the resIdent was on the bed, the
officer would move on to the next room
On the mght of November 4 to 5, the gnevors saw Lepage at 23 10
and 00 30, when the young offender went to the washroom, and agam at
02 00, when Lepage complamed of a sore stomach and was gIVen some
Amphogel Thereafter, each tIme they looked mto Lepagets room, the
resIdent appeared to be entIrely under the blanket, and all seemed III order
m the room, so they decIded Just to let Lepage sleep There was some
concern that, If they went mto the room and hfted the blanket, It would
dIsturb Lepage and he would be unpleasant the next day And they were
busy WIth the resIdent across the hall, who was dIabetIc and had
deliberately taken an overdose of sugar
It IS not known when Lepage escaped Somehow he had a
screwdnver from the trammg school (It was found later m a shoe left In
the room), WIth whIch he removed the screws holdmg the top sectIOn of the
wmdow He was found mIssmg at 6 42AM At 6 59 AM, a vehIcle was
reported stolen from a property three mIles from BrookSIde, and Lepage
would later be convIcted of the theft of this vehIcle Lepage remamed
loose for three months
From this eVidence we conclude that:
1 Though It IS clear that the Night Procedures at BrookSIde call
for a full tlbody" count tWIce per hour, the practIce IS not to do
such a ngorous count. And whIle we agree that merely because
a practIce has developed It does not mean that the practIce IS
now correct, III thIS case It seems tmpractIcal and unworkable to
follow the Nlght Procedures absolutely Firstly, gIven that all
of the reSIdents' room are unlocked, in order to mamtam
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secunty whIle entenng a resIdent's room, greater precautIOn
must be taken than If the other rooms were locked. An officer
mIght be assaulted and the resIdent may have a weapon (Lepage,
m partIcular, though he was small, had a long record of VIOlent
cnme) and the officer may thmk It advIsable that there be two
officers entenng the room. ThIS would mean that the officers
would have to call m the ShIft SupervIsor to mamtam general
securIty m the house whlle they entered the reSIdent's room
OtherwIse, the other young offenders could leave theIr rooms
mto an unattended hallway Secondly, the reSIdent may cause a
dIsturbance (Lepage had also done thIS III the past) and thIS
mIght cause a general eXIt from the reSIdents' rooms In all, m
our VIew, It IS not feaSIble to do a full "body" count tWIce per
hour for each reSIdent, gIven that the doors are unlocked and
roughly one-half of the reSIdents are fully under the covers on
each round.
We are not saymg that the doors of the reSIdents' rooms ought
to be locked. Management may feel It'S best that they not be
locked for varIOUS reasons But, If the doors are unlocked, then
It IS not feaSIble to adhere to the faCIlIty's "body" count
procedures absolutely
We note that the MmIstry's Standards and Procedures only
reqUIre full "body" counts four times III twenty-four hours
2 Thus, It would not be nght to dISCIplIne the gnevors for failmg
to go m on every round to check for a part of Lepage's body It
was satIsfactory for them to use thelf Judgment.
3 However, for the grIevors to have been satIsfied that all was
well when all they saw on Lepage's bed for over four hours was
a lump under the blanket, was clearly bad Judgment. In our
VIew, there was a failure to mamtam proper supervision.
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4 Nonetheless, all that we can say for certaIn about the
consequences of theIr failure, IS that It means we can't estabhsh
more precIsely when Lepage escaped. Perhaps If they had done
theIr Job properly, Lepage may have been apprehended more
qUIckly But thIS IS speculatIon It IS not possible to say for
certam that theIr faIlure contributed to the escape Itself FIrstly
even If they had done a proper "body" count on each round,
Lepage may have slIpped away between counts Secondly, had
the wmdow been more secure, for example If there had been a
secunty screen on the outsIde, It is hIghly unlIkely that Lepage
could have effected hIS escape The statIC secunty of the
wmdows themselves relIed entIrely on the s1ll1ple wood screws
whIch were accessible from the 10sIde TIllrdly, Lepage had a
screwdrIver and the gnevors were not responsIble for thIS
Thus, the CIrcumstances were npe for Lepage's escape, and the
gnevor s' faIlure to do a proper "body" count may have been
SImply comcldental.
Mr Szabadka Impressed us as an admmIstrator and as a wItness
However, 10 our VIew, when he assessed the dIscIplme to be gIVen to the
gnevors, he placed emphaSIS on two factors whIch ought not to have been
gIven the- weIght he gave them. FIrstly, he was concerned that they had
farled to adhere to the Nlght Procedures and we have found that It IS not
feasible to adhere to them absolutely Secondly, he was concerned that they
contributed to Lepage's escape, and we have found that It IS not possIble to
say for sure that they dId contribute to the escape All that we can say for
certain IS that their failure to provIde adequate supervIsIon means that It IS
not possible to be more preCIse about when Lepage escaped
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The gnevors dId fall to provIde adequate supervIsIOn by fallIng to
enter Lepage's room for over four hours when all they saw m that tIme
was a lump under a blanket on the bed. There IS Just cause for dlsclplme
This Board has often upheld a heavy penalty when a correctIOnal
officer's neglect has been an Important cause of an escape-Czernwk,
688/85 (DelIsle) - 20 days, Lusls, 579/82 (Venty) - 3 months, Lee, 764/83
(Samuels) - 3 months.
In our View, here a one-day's suspenslOn wIthout pay IS warranted
and we order that thIS penalty be substItuted for the ongmal suspensIOn
The letter of suspenslOn lssued by Mr Szabadka should be removed from
the gnevor st file and thIS award should be placed III the file
The gnevor s should be compensated for any monetary losses as a
result of the extra day's suspenslOll ongmally unposed. I
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We will remam seized of any Issues WhIch the partIes are unable to
agree upon m the unplementatlOn of thIS award.
Done at London, Ontano, thIS 13th day of February~ 1990.
E Orsmi, Member~~