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HomeMy WebLinkAbout2005-0823.Zolnierczyk.11-02-08 Decision Commission de Crown Employees Grievance Settlement UqJOHPHQt des griefs Board dHVHPSOR\pVGHOD Couronne Suite 600 Bureau 600 180 Dundas St. West180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 7pl. : (416) 326-1388 x (416) 326-1396 7pOpF   Fa GSB#2005-0823 UNION#2005-0234-0122 IN THE MATTER ARBITRATION OF AN Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Zolnierczyk) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFOREVice-Chair Bram Herlich FOR THE UNION Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Felix Lau Ministry of Government Services Legal Services Branch Counsel HEARING May 15 & 28, 2009, June 3, 2009, September 9 & 10, 2009, October 16, 2009, November 5 & 6, 20, 26, 2009, March 22, 2010, April 26 & 27, 2010, September 22, 2010, October 12 & 15, 2010. - 2 - Decision [1]The grievor, Rocky Zolnierczyk, was discharged from his employment as a &RUUHFWLRQDO2IILFHU ³&2´ DWWKH0DSOHKXUst Correctional Complex by letter dated May 24, 2005. The grounds relied upon by the employer to support the termination, as set out in the notice of dismissal, were as follows: That on December 24, 2003 you used excessive force on an inmate under your care and control and failed to report the use of force as required by Ministry Policy and the Regulations made under the Ministry of Correctional Services Act. That you submitted false and misleading reports regarding the circumstances surrounding the incident. [2]The central event giving rise to the termination and, thus, to these proceedings, happened some seven years ago. It took approximaWHO\VHFRQGVWRXQIROG,WLVWRQRRQH¶V credit that it has taken such an inordinate amount of time to constitute, commence and complete the instant proceedings. Some of the reasons for the delay are more compelling than others, e.g. parallel criminal and civil proceedings and on-again off-again mediation efforts in these (and perhaps other) proceedings. But the inherent frustration engendered by the delay in this case is only magnified by the fact that there were disputed versions of the critical 28 seconds of events, which, now seven years later, must be resolved. [3]Indeed, as will be seen, the outcome of this case hinges largely, if not exclusively, on findings of fact in relation to those 28 seconds. Three individuals: the grievor, an inmate and another CO all testified to their parts in those 28 seconds of salient events. But while it might be thought that the viva voce evidence of three witnesses, however divergent their accounts of the 28 seconds might be and were, could be heard by this Board in short order. [4]However (once the litigation commenced in earnest), the case required some 16 days of hearing over a period of a year and a half. In addition to the three individuals already mentioned, we heard the evidence of 5 further witnesses, some of whom testified at great length. I will shortly detail, in summary form, the nature of the evidence proffered by each of the - 3 - witnesses. Suffice it to say that in a circumstance where there were multiple opportunities for various witnesses to provide various statements at various times about the events in question, there were many opportunities to hear not only evidence about what actually transpired but also WRKHDUHYLGHQFHWKDWZDVIDUPRUH³GHULYDWLYH´in nature, i.e. not direct evidence about what actually happened, but rather evidence about what the participants, at various times, said or wrote or otherwise reported about what happened. Of course, this trail of multiple utterances contributed to the many layers of the evidentiary onion and provided fertile ground for cross- examination aimed at identifying inconsistencies in order to test and possibly undermine the UHOLDELOLW\RIDJLYHQZLWQHVV¶VHYLGHQFH,GRQRWPHDQWRVXJJHVWWKDWDQ\RIWKLVHYLGHQFHZDV not, strictly speaking, relevant or admissible. However, having now traversed this impressive evidentiary terrain, I am less than certain that much of this derivative evidence was ultimately of great probative value. Neither is it apparent to me that the result in the case would have been significantly different had the viva voce evidence been largely restricted to direct testimony about the salient events. [5]In addition to the viva voce and written documentary evidence, a number of video recordings were marked as exhibits. These included videos recorded at the same time as the events in question. As will be seen, the events took place in the Admitting and Discharge ³$ '´ DUHDRIWKH0DSOHKXUVWIDFLOLW\7Kere are numerous cameras mounted in various locations within the jail. We were provided with the recordings from two such cameras mounted at opposite ends of a hallway within the A&D area. These afford a clear view and record of movements in the hallway. The central event took place in a small cell off this hallway. While the videos provided no view into that cell, they were, nonetheless, extremely helpful in demonstrating various relevant comings and goings and in establishing the timing of events. We also took a view of the facility and the relevant areas. [6]In its briefest possible summary form, thHHYHQWVJLYLQJULVHWRWKHJULHYRU¶V termination were as follows. At approximately 8 a.m. on December 24, 2003, a number of inmates were being prepared for transport to courts. One of these inmates, then recently arrested .HQQHWK0RRQH\ KHUHLQDIWHUUHIHUUHGWRDV³WKHLQPDWH´ EHFDPHXQUXO\7KHJULHYRUHVFRUWHG him into cell #12. They were inside the cell for approximately 28 seconds. Another CO, Cole Jensen, can be seen in the video, standing at the entrance to the cell with a view of its interior. - 4 - While the video suggests that at least one other CO may have had a partial view into the cell for some portion of the 28 seconds, the direct evidence we heard was restricted to that of the inmate, the grievor and CO Jensen. [7]The employer asserts that during those 28 seconds in the cell, the grievor assaulted the inmate by delivering a punch to his head. There was, the employer asserts, no basis or need for any physical intervention on the grLHYRU¶VSDUW7KHDVVDXOWZDVWKHUHIRUHDQ excessive use of force in circumstances which required no physical force at all. [8]As I have already alluded to, a central part of my task is to reconcile the conflicting versions of events offered by the grievor, the inmate and CO Jensen. Both the inmate and Jensen testified, in versions that were compatible one with the other, that the grievor struck the inmate. The grievor denied it. My task was made somewhat more complicated by the fact that each of these three individuals offered different versions of the events at different times. For example, although they were unequivocal in their testimony before me, both the inmate and Jensen had initially denied that any assault had taken place. For his part, while the grievor has constantly and consistently denied any assault took place, he initially even denied ever entering WKHFHOOWRJHWKHUZLWKWKHLQPDWH WKHUHZHUHRWKHULQFRQVLVWHQFLHVLQWKHJULHYRU¶VHYLGHQFHWR which I shall return). [9]After emerging from the cell, it would appear that the inmate continued his disruptive behaviour. About three and one half minutes after exiting cell #12, the inmate was once again escorted into that cell by the grievor. Whatever transpired during the second cell entry is of less importance for our purposes. There is, however, no issue that the inmate emerged from the cell with a serious head injury, requiring surgery and hospitalization. The inmate testified that he had no recollection of anything between the time of his immediate (second) entry LQWRWKHFHOODQGKLV³FRPLQJWR´DIWHUVXUJHU\LQthe hospital. (I note that there is evidence, including the video and other direct and hearsay evidence, clearly establishing that the inmate was conscious and seen walking along the A&D hallway upon emerging from the second cell HQWU\ $QGWKHJULHYRU¶VHYLGHQFH±LQUHVSHFWRIWKHVHFRQGFHOOHQWU\±LVQRWQHFHVVDULO\DW least in its broad contours, incompatible with that of the inmate. The grievor testified that, - 5 - virtually upon entering the cell (the second time) the inmate collapsed and, in the course of falling, struck his head against a hard concrete surface. [10]There may be any number of possible explanations for the injury sustained by the inmate during the course of the second cell entry. It may be that, entirely consistent with the JULHYRU¶VHYLGHQFHWKHLQPDWHVLPSO\FROODSVHG±that would be consistent with a terse entry by the attending surgeon. The clinical note reads as follows: The patient is an unfortunate 39-year-old male who has a significant drug addiction and was recently incarcerated. At the time of dictation, I did not have a full history of how this gentleman sustained his injury, but apparently, it was a witnessed sudden collapse and this is very likely, given his positive drug screen. On arrival at Trillium Health Centre, the patient was drowsy, but arousable, confused and moving all limbs. The CT scan showed a significant left acute subdural with mass effect and midline shift. The risks and benefits of surgery were GLVFXVVHGZLWKWKHSDWLHQW¶VIDWKHUDQGFRQVHQWZDVUHFHLYHG [11]This constituted virtually the full extent of any medical evidence tendered. And, RIFRXUVHWKHEDVLVIRUWKHFRQFOXVLRQRI³VLJQLILFDQWGUXJDGGLFWLRQ´DQGWKHH[WHQWDQG significance of the positive drug screen were therefore not further explained. [12]It may be that, not inconsistent with thHJULHYRU¶VHYLGHQFHRIZKDWWUDQVSLUHG during the second cell entry, the inmate collapsed as a result of the delayed impact of a blow sustained during the first cell entry. This would, of course, be inFRQVLVWHQWZLWKWKHJULHYRU¶V version of the first entry. [13]There may be other possibilities with respect to what exactly transpired during the second cell entry (including those which might cRQVLGHUWKHLQPDWH¶VSRVLWLYHGUXJVFUHHQ  However, both employer counsel and Superintendent Dalgleish, who made the decision to WHUPLQDWHWKHJULHYRU¶VHPSOR\PHQWPDGHLWFOear that the employer did not rely upon anything that transpired during the second cell entry or any alleged impropriety that may have taken place there. Indeed, while Superintendent Dalgleish candidly conceded that he may have had and continued to have suspicions about what precisely occurred during the second cell entry, the evidence was insufficient to establish any wrongdoiQJRQWKHJULHYRU¶VSDUW7KXVLQPDNLQJWKH - 6 - GHFLVLRQWRWHUPLQDWHWKHJULHYRU¶VHPSOR\PHQW DQGLQDGYDQFLQJLWVFDVHEHIRUHPH WKH employer placed no reliance on the events of the second cell entry and neither did it rely on the FRQVLGHUDEOHH[WHQWRIWKHLQPDWH¶VLQMXU\DVDbasis for the discharge. In those circumstances, I have not found it necessary, beyond that which is undisputed, to arrive at any firm or comprehensive conclusions as to what transpired during the second cell entry. [14]Thus, it is clear that we are led back to the 28 seconds that comprised the first cell entry as the evidentiary heart of the case. As I have already indicated, very little of the many days of evidence in this case relates directly to those 28 seconds. I will, however, before further examining those 28 seconds, offer an annotated summary of the evidence proffered by the witnesses who testified. [15]Mike McDonald is the Security Investigations Officer at the Maplehurst facility. There had been video cameras in various locations within the facility for some time. However, until two or so days prior to the events in question, none of these cameras had the capacity to record. That innovation was implemented by Officer McDonald. Further, it would appear that the impetus for the innovation was triggered, at least in part, by concerns over excessive use of IRUFHZLWKLQWKHLQVWLWXWLRQ±HYHQWVWKDWLQYROYHGWKHJULHYRU [16](In fact the grievor ultimately received a three-day suspension for, inter alia, using excessive force on an inmate. That incident took place some two weeks prior to the incident we are reviewing and resulted in a three day suspension, imposed approximately one year later in December 2004, some 5 months prior to the discharge that is the subject of these proceedings. The employer did not rely on any aspHFWRIWKHJULHYRU¶VUHFRrd in general or this suspension in particular to support its decision to terminate the grievor.) [17]Mr. McDonald visited and interviewed the inmate in his hospital room some four days after his operation. And while the inmate, in his evidence before this Board, professed little if any recollection of the meeting, Mr. McDonald testified and produced notes and an occurrence report prepared at the time to support his evidence that the inmate asserted that he had been struck by the grievor. There are some peculiarLWLHVLQ0U0F'RQDOG¶VHYLGHQFHDQGUHSRUWV For example, his occurrence report records asking the inmate whether there were any other - 7 - RIILFHUVSUHVHQWZKHQ³WKLVSXQFK´RFFXUUHG%XWthere is nothing prior to that notation in the occurrence report to establish that any punch occurred. [18]Perhaps more significant is the narrative attributed to the inmate, who is recorded as having said that in the cell (it is not clear whether during the fiUVWRUVHFRQGHQWU\ ³,ZDVVDW on the bench and all of a sudden he hooked me with his right fist. I went to stand up, felt dizzy and fell on the floor. The next thing I rememberZDVLQWKHQXUVH¶VRIILFHZLWKKHU´7KLV account is difficult to square with that of others (including the LQPDWH¶VRZQYLYDYRFHHYLGHQFH  and with the video record. In any event, Mr. McDonald was quite certain of the nature of the central allegation advanced to him by the inmate. We next heard directly from the inmate. [19]Mr. Mooney was 45 years old at the time he testified. He is no stranger to FRUUHFWLRQDOIDFLOLWLHV±KHHVWLPDWHGWKDWKHKDs been convicted of crimes some 85 times and incarcerated on some 20 occasions in relation to those convictions, typically for offences such as theft, other property offences and possession of stolen property. He also conceded that, at least up to December 2003, he regularly used illicit drugs, including cocaine and others. When he was ³RQWKHVWUHHW´WKLVZDVDGDLO\RFFXUUHQFHDnd continued, though perhaps not with the same frequency or selection, even while he was incarcerated. [20]His evidence about the relevant events was brief, at least in examination-in-chief. He acknowledged that he caused something of a ³UXFNXV´LQWKH$ 'DUHDDVDUHVXOWRIKLV objection to the attire he was being required to wear for his court appearance. The grievor directed him into a cell off the A&D corridor and told him to sit on the bench in the cell. The inmate complied whereupon the grievor, with his fist, struck him in the face. The inmate, still sitting, asked what that was for and the grievor responded only by exiting the cell. Another CO, who was at the door, told the inmate to get changed for court. The inmate exited the cell went to his clothing bag (in the hall) and started taking clothes out of the bag. The grievor returned and gave him a coat. Some time after that the inmate made a comment to the grievor, something like ³\RXKLWOLNHDJLUO´ZKHUHXSRQWKHJULHYRURQFHDJDLn directed the inmate into the cell, but all that the inmate could recall subsequent to thatHQWU\ZDVZDNLQJXSLQWKHKRVSLWDO³ZLWKWXEHV - 8 - FRPLQJRXWRIP\EUDLQ´7KHLQPDWHKDGQRUHFROOHction at all of anything that transpired during the second cell entry apart from the entry itself and his apparently virtually immediate blackout. [21]We next heard from Cole Jensen, who has been a CO at Maplehurst since 2002. He was on duty in A&D on the morning in question. Initially, Jensen was unable to provide any real independent recollection of the events. However, he was provided with an opportunity to review some of his own previous statements, including a transcript of his interview by LQYHVWLJDWRUVIURPWKH0LQLVWU\¶V&RUUHFWLRQDO,QYHVWLJDWLRQDQG6HFXULW\8QLW ³&,68´ RQ February 16, 2004 and his testimony, in August 2005, at a preliminary inquiry held in relation to the criminal charges, which were brought against the grievor. (We were not formally advised of the precise disposition of those charges but it does not appear that any conviction resulted.) And with those memory aids, CO Jensen was able to confirm the truth of and adopt those prior VWDWHPHQWV±QRWDEO\WKDWKHZitnessed the grievor assault, i.e. punch the inmate inside the cell off the A&D corridor. [22]Special Constable Phil Martin of the Waterloo Regional Police testified essentially to a single relevant point. He was in attendance in the facility on the day to transport inmates to Court. At some point after the inmate had collapsed, Constable Martin made his way to the entrance of the cell. Inside were the grievor, the inmate, the nurse and, perhaps, others. The constable made a gesture to the grievor by which he intended to convey an inquiry as to what had happened. The grievor responded in kind, making a three part gesture: presenting one finger and then a fist, followed, finally, by making a two-handed motion such as a baseball XPSLUHPLJKWWRLQGLFDWH³VDIH´RUSHUKDSVPRre aptly, as a boxing referee might to indicate ³RXW´ [23]Constable Martin acknowledged that while he may have misunderstood the gesture, he took it to mean that the grievor had punched the inmate once and that the latter consequently collapsed. [24]We next heard, at great length, from the lead CISU investigator in the matter, Inspector Bruce Graham. The inspector prepared an 81 page undated report, which included an - 9 - appendix, comprised of 55 pages of video screen shots and other photos as well as a three page exhibit register listing the 37 exhibits he considered in the preparation of his report. [25]Obviously, Inspector Graham was not in a position to offer any first-hand evidence of the events giving rise to the termination. However, his elaborate report was heavily relied upon by Superintendent Doug Dalgleish in PDNLQJWKHGHFLVLRQWRWHUPLQDWHWKHJULHYRU¶V employment. [26]7KHXQLRQZDVH[WUHPHO\FULWLFDORIVHYHUDODVSHFWVRI,QVSHFWRU*UDKDP¶V approach and final report. There may be some basiVIRUDWOHDVWVRPHRIWKHFULWLFLVPVOHYHOHG± the report blends fact-finding with polemic and is tinged with a certain prosecutorial zeal. Some RIWKHFXULRVLWLHVLQFOXGH,QVSHFWRU*UDKDP¶Vconcession that, even before interviewing the grievor, he had already concluded that there was sufficient clear and cogent evidence to support the conclusion that the grievor had struck the inmate. Despite the fact that he never interviewed Constable Martin, Inspector Graham concluded that the gesture Martin observed the grievor to make was tantamount to a confirmation of an admission by the grievor. Not all of the dots which might connect the information before Graham with his conclusion appear to be well connected and, although I will ultimately have more to say DERXWWKHHYLGHQFHUHJDUGLQJWKLV³JHVWXUH´E\ the grievor, I simply note, again, that Martin himself acknowledged that he may have misunderstood or misinterpreted the meaning of the gesture. [27]Neither did Graham even secure a copy RI&2-HQVHQ¶VSROLFHLQWHUYLHZXQWLO months after the fact. (Graham interviewed JeQVHQRQ-DQXDU\±GD\VHDUOLHU-HQVHQ had provided a significantly different versiRQRIHYHQWVLQKLVSROLFHLQWHUYLHZ±QR documentation of this police interview is expressl\UHFRUGHGLQ*UDKDP¶VH[KLELWUHJLVWHUDQG neither does his report otherwisHUHFRUGRUDVVHVV&2-HQVHQ¶V prior inconsistent account). [28]I was also impressed by how firmly Inspector Graham arrived at conclusions about the severity of the inmate¶VFRQGLWLRQ ³WKHJX\ZDVDOPRVWGHDG´ 7KHUHZDVOLWWOHLQWKH way of medical evidence or documentation in the materials Graham considered or, for that matter, in the evidence before me. And finally, just to highlight some of the curiosities, Inspector Graham did not fully pursue all possible evidence, including evidence of accounts - 10 - others may have offered suggesting that the inmate, on the very day of the events, denied any assault had occurred. [29]In fairness, Inspector Graham conducted an investigation, not a quasi-judicial proceeding subject to the rules of natural justice or administrative fairness. And it is not my task, at least not directly, to assess the accuracy of the report. My principal task is to determine whether there was just cause to support the grieYRU¶VWHUPLQDWLRQ,PDNHWKDWGHWHUPLQDWLRQRQ the basis of the relevant evidence before me, not on the basis of Inspector *UDKDP¶VILQGLQJV,W is not surprising that such a detailed report may be the subject of some fair criticism, which, in and of itself, does not give me great pause. If I were persuaded that ,QVSHFWRU*UDKDP¶VUHSRUW was not merely subject to some fair criticism, but so utterly unreliable that it had an improper LPSDFWRQWKHHPSOR\HU¶VGHFLVLRQPDNLQJWKHQLWmight be necessary to delineate and assess its faults and their impact much more fully. But while one might quibble with the approach and HYHQVRPHRIWKHFRQFOXVLRQVRI,QVSHFWRU*UDKDP¶VUHSRUWDVZLOOEHVHHQ,ILQGQRIDXOWLQ PDQ\RILWVHVVHQWLDOILQGLQJV±SDUWLFXODUO\ those of relevance to my determination. [30]Inspector Graham, in both his report and his evidence before me outlined and RSLQHGRQWKHQDWXUHRIWKH³&RGHRI6LOHQFH´VDLG to be prevalent in the corrections context. I will return to this. [31]He also provided us with a guided or annotated viewing of the video evidence and I agree with his assessment, also echoed in his report, that the video evidence in this case is the most reliable of all the evidence tendered. We may have been treated to a progression of changing statements proffered by all of the direct observers, including those they offered in their evidence before me, some six to seven years after the fact, but the video images remained constant. [32]We next heard from Superintendent Dalgleish who made the decision to terminate WKHJULHYRU¶VHPSOR\PHQW7KH6XSHULQWHQGHQW¶VDSSURDFKDQGhis evidence both struck me as fair and balanced. He testified that in making his determination, he relied most heavily on CO -HQVHQ¶VDFFRXQWDQGRQWKHLQFRQVLVWHQFLHVLQWKHJULHYRU¶V+HLQGLFDWHd that he placed less weight on the evidence of the inmate. He was clear that, while he candidly conceded that he - 11 - might have his own opinion (which he did not share) about what transpired during the second cell entry, the evidence was such that the only reasonable conclusion was that the inmate fell (without having, at the time of his collapse, been subjected to any other external force). He was equally clear (perhaps unlike Inspector Graham WKDWZKLOHVWULFWO\VSHDNLQJWKHJULHYRU¶V touching of the inmate twice (as can be seen on WKHYLGHRUHFRUGZKHQWKHLQPDWH¶VHOERZZDV touched/held to guide/direct him into the cell) was a use of force, it was neither excessive nor of any particular significance. Thus, the determination was based solely on the events associated ZLWKWKHILUVWFHOOHQWU\DQGWKHJULHYRU¶VFRQWLQuing failure to properly report about those events. [33]The union then called its evidence. The grievor provided a concise summary of the events on the day in question. It was curious that his initial recitation of those events included no account or description whDWVRHYHURIWKHLQPDWH¶VFROODSVHVXEVHTXHQWWRWKHVHFRQG cell entry. Union counsel directed him backwards in his narrative to provide that account. I will examine the accounts of the principal eyewitnesses in a little more detail shortly. For the moment it is sufficient to note that the grievor has been constant in all of his various statements: he has consistently denied ever striking the inmate. He testified that he escorted the unruly uncooperative inmate into the cell and spoke with him briefly before exiting. [34]Finally, we heard from Kevin Mitchell who was the Acting Operational Manager on the shift in question. Mr. Mitchell provided little in the way of any helpful evidence related directly to the events in question. Essentially, he was called by the union to share his positive opinion of the grievor as a colleague. [35]The pictures presented by the video recordings do not vary or suffer from inconsistency over time and re-telling. Unfortunately, however, neither do they disclose what actually transpired in the cell on either of the two occasions. The entrance to the cell, but not its interior, is plainly visible and thus we have a precise record of who entered the cell and when, from approximately 8:10 a.m., when the inmate first appears in the video, until he emerges from the cell the second time at approximately 8:32 a.m. [36]He appears initially to be wearing a black jacket over top of his orange prison garb and carrying a garment bag, which he hangs on a clothing rack in the corridor. After - 12 - speaking with the grievor (and another CO whose testimony we did not hear) he returns to the clothing rack. The grievor has gone to another area of the corridor. The inmate shuffles about, approaches the garment bag, takes off his jacket and puts it in the garment bag. He is now clad exclusively (at least his outermost layer) in orange prison gear. He walks to the other side of the clothes rack and has words with Acting OM Mitchell. (From the gestures made, one might reasonably assume that his attire may well have been the subject of the conversation.) He then returns to the clothes rack spot he was in previously, throws his jacket on the floor, throws his garment bag on the floor and appears to be, perhaps even deliberately, attracting attention. He undoes and removes the upper portion of his orange one-piece jumpsuit, revealing a black top underneath. The grievor and CO Jensen approach him. He removes his shoes and with his jumpsuit somewhat askew, is escorted by the grievor into the adjacent cell. The two of them are inside the cell for 28 seconds. During that time, CO Jensen can be seen standing at the cell door and virtually continuously looking in the direction of the cell interior. At least one other CO (who did not testify) can be seen glancing briefly into the cell as he walks down the corridor and pauses near the cell entrance. The grievor emerges from the cell first, followed closely by the LQPDWHZKRDSSHDUV³QRZRUVHIRUWKHZHDU´ [37]The inmate returns to the clothing pile, removes his black top and another black t- shirt underneath it and puts on an orange t-shirt from the garment bag and does up the top portion of his jumpsuit over it. He puts on a different pair of shoes from the garment bag. The grievor then walks over and hands him an outer coat, returning in the same direction he came. Acting OM Mitchell arrives, has words with the inmate and walks away. The inmate then puts on the coat, packs up his garment bag, places it on the clothes rack and walks to the other side of the rack, where the grievor is standing, with others. The inmate appears to say something to the grievor and the grievor then, once again, escorts the inmate into the cell (approximately three and RQHKDOIPLQXWHVHODSVHEHWZHHQWKHLQPDWH¶VILrst exit from and second entry into the cell). [38]The inmate is inside the cell for approximately 15 minutes before he emerges and is escorted, although largely under his own steam, by the grievor, the institution nurse (who did not testify), OM Mitchell and Constable Martin to the health area of the facility for medical attention. During the 15 minutes in the cell, there is no one who can be seen with a constant view into the cell. Numerous people come and go, walking by the cell, sometimes glancing in or - 13 - entering. The first entry into the cell by another CO (who did not testify) occurs approximately 40 seconds after the grievor and the inmate had entered. Another CO (who did not testify) enters the cell briefly about 30 seconds later. And the grievor can be seen emerging briefly from and re-entering the cell about 30 seconds after that.There are further entries by acting OM Mitchell, Special Constable Martin, and, shortly thereafter, the nurse. Ultimately, the inmate is escorted out of the cell as described. [39]The evidence of each of the three principal witnesses is, to varying degrees, problematic. One cannot lose sight, however, of the fact that these proceedings did not even commence in earnest until some five and one half years after the events in question. Over that period of time, various events, including investigations by the employer and by the police, preparations for civil and criminal proceedings, and testimony at a preliminary inquiry provided a wealth of opportunities for the witnesses to offer and be questioned and cross-examined on their accounts of the critical 28 seconds. It should come as no surprise that none of them was able to traverse all of those inquisitorial challenges without falling victim to at least some inconsistency. The three principal witnesses, did, however, share one common characteristic: they all appeared, though each in their very different ways and undoubtedly for very different reasons, uncomfortable, nervous and less than enchanted with the need to testify. I will now review their evidence a little more fully. [40]I begin with the evidence of the inmate. Before reviewing or assessing his testimony, it may be useful to catalogue the sources of evidence of statements by him and others, which were or could be used to test his evidence (I set these out in roughly chronological order): 6HFXULW\2IILFHU0DF'RQDOG¶VHYLGHQFHVXSSRUWHGE\IRXUGLIIHUHQWGRFXPHQWVKH prepared shortly after the incident recording, inter alia, WKHLQPDWH¶VVWDWHPHQWVWR him a few days after the events; -information from the inmate recorded on hospital admission forms - information about the inmate included in the record of operation prepared by the attending surgeon - the statement of the nurse to police on January 5, 2004 - 14 - -tKHWUDQVFULSWRIWKHLQPDWH¶Vstatement to police, January 8, 2004 -interview (video and written transcript) of the inmate by CISU investigators January 13, 2004 WKHLQPDWH¶VHYLGHQFHLQ pre-trial proceedLQJVLQUHODWLRQWRWKHJULHYRU¶VFULPLQDO charges in August 2005 WKHLQPDWH¶VVWDWHPHQWVDVUHFRUGHGin a neurophysiological assessment report prepared in March 2009 in relatiRQWRWKHLQPDWH¶VFLYLOVXLW -other viva voce evidence before this Board during the course of the hearing, LQFOXGLQJ$FWLQJ200LWFKHOO¶VWHstimony that, on the day of the event, the inmate denied any assault had occurred. 6LPLODULPSUHVVLYHSDSHUWUDLOV±LWZLOOQRWEHQHFHVVDU\WRHQXPHUDWHWKHPLQLQWULFDWe detail, the above list provides WKHIODYRXU±PDUNHGWKHWHVWLPRQ\RIWKHRWKHUWZRSULQFLSDO witnesses.) [41]As I have already suggested, this multiplicity of sources and documents provided fertile ground to establish inconsistencies, some more significant than others. And even apart IURPWKDWWKHLQPDWH¶VHYLGHQFHDQGKLVGHPHDQRXUin its presentation did not inspire the greatest of confidence. He was particularly belligerent and obstreperous in response to union counsel during cross-examination. And the more union counsel was able to highlight (even some UHODWLYHO\OHVVVLJQLILFDQW GLVFUHSDQFLHVLQWKHLQPDWH¶VFROOHFWHGYHUVLRQVRIHYHQWVWKHPRUH obstinate the inmate became. We were required, on perhaps more than one occasion, to interrupt the proceedings to permit the inmate to gather his composure. Neither do I lose sight of the fact that, at least at the time he gave his evidence, the inmate himself, with a lawsuit pending against the Crown, had a personal financial interest in the content of his evidence (indeed, there was a certain irony in the spectacle of the employer hastenLQJWRFDOOWKHLQPDWHWRWHVWLI\±EHIRUHZKDW ZDVKLVLPSHQGLQJUHOHDVHIURPMDLO±LQDQHIIRUWWR prove, in these proceedings, at least some of the very facts upon which the inmate would likely rely in his civil action against the Crown). [42]I will not catalogue all of the various inconsistencies in detail. But there can be QRGRXEWWKDWWKHFKLHISRUWLRQRIWKHLQPDWH¶Vevidence and other utterances that are most difficult to reconcile relate to the principal factual issue in the case. On a number of occasions - 15 - on or very close to the day in question, the inmate, given separate opportunities (with Acting OM Mitchell, with the nurse and with hospital staff) consistently denied any assault had occurred.It was only several days later in hospital after his surgery and when pressed by Security Officer McDonald to make a statement, that the inmate first alleged that the grievor had assaulted him. $QGHYHQWKHQDVVXPLQJ2IILFHU0F'RQDOG¶VDFFRXQWLVDFFXUDWHWKHLQPDWH¶VUHQGHULQJZDV significantly different from his ultimate version and was, in itself, inconsistent with the video images (initially the inmate described only a single cell entry with the grievor during which time he was assaulted and collapsed virtually immediately). The video, however, makes it plain and clear that there were two separate cell entries involving the inmate and the grievor. In his XOWLPDWHWHVWLPRQ\EHIRUHPHWKHLQPDWH¶VDFcount had migrated to one that fixed the assault in the first entry and the collapse in the second. [43]:KLOHWKHVXUURXQGLQJGHWDLOVPD\KDYHYDULHGDQGZKLOHWKHLQPDWH¶VFDSDFLW\ for recollection seemed to also vary at different times, there was one point which, from the initial declaration to Officer McDonald and for the duration, culminating in his evidence in these proceedings, remained constant and unwavering: the inmate was certain that the grievor had assaulted him, punched him, though not overpoweringly. [44]I could speculate and posit many possible explanations for the variation in the LQPDWH¶VDFFRXQWVH[SODQDWLRQVWKat would range from benign to nefarious. But while I cannot ignore the relative constancy of his assault allegation, if the emSOR\HU¶VFDVHUHVWHGH[FOXVLvely RUHYHQFKLHIO\RQWKHLQPDWH¶VHYLGHQFH,PLght well be constrained to conclude that the employer had failed to meet its onus of proof in this case. [45]While the evidence of Cole Jensen is not without its difficulties, I certainly found him to be a far more reliable witness than the inmate. His account did not suffer from the ongoing rambling inconsistency and checkerboard of recollections that sometimes emerged from WKHLQPWH¶VDFFRXQW a [46]There were, however, broadly speaking, two issues with his testimony. First, he was extremely slow to start and exhibited, at least initially, little, if any, capacity to recall the salient events with any level of specificity. However, as his testimony progressed and as he was - 16 - afforded the opportunity to review some of his own prior statements, his recollection was clearly improved. The other principal issue with his evidence is the undisputed fact that the account he gave on the stand (and in several other contexts) directly contradicts the account he initially offered in one critical respect. In his interview with the police investigating possible criminal charges, Jensen (although he expressed some doubtVDERXWWKHLQPDWH¶VLQMXU\UHVXOWLQJVROHO\ from a fall) clearly stated that he had not seen the inmate assaulted. Approximately 10 days later edings), he (and in all of his subsequent accounts, including his viva voce evidence in these proce clearly described seeing the grievor strike the inmate in the face with his right hand. [47]Jensen conceded that, at least in that respect, the statement he had given to police was inaccurate. He explained that he had not prepared an occurrence report (as he ought to have) about the events and had made some misrepresentations to the police because he did not want to ³UDWRXW´DIHOORZ&2%XWYHU\VKRUWO\DIWHUthe police interview, he met with a lawyer to discuss the matter and realized the seriousness of having proffered a false statement to police. How exactly he came to be interviewed by the CI68LQYHVWLJDWRUVZDVQRWFOHDULQ-HQVHQ¶V UHFROOHFWLRQ,QVSHFWRU*UDKDP¶VHYLGHQFHVXJJested it was a result, at least indirectly, of -HQVHQ¶VRZQLQLWLDWLYH±*UDKDPZDVFRQWDFWHGby a union representative and the result was that an interview of CO Jensen was arranged to be held away from the workplace with his union representative in attendance. From that point forwDUG-HQVHQ¶VFODLPWRKDYHZLWQHVVHGWKH grievor assault the inmate has been unwavering. [48],WZDVLQUHODWLRQWR-HQVHQ¶VWHVWLPRQ\and the two issues adverted to that the employer pointed to and relied most heavily RQWKHH[LVWHQFHRID³&RGHRI6LOHQFH´ WKH ³&RGH´ ZLWKLQWKHFDGUHRI&2VHPSOR\HGE\WKHMinistry. Evidence about this Code, in the context of our proceedings, was the subject of some controversy between the parties. In lieu of hearing specific and particular evidence to establish and support the existence of the Code in other contexts within the Ministry, the parties agreed to file a number of decisions of this Board s apparent as exhibits and to make legal argument accordingly. Evidence about the Code and it operation in the instant case formed part of the testimony of a number of witnesses. [49]There is no doubt that this Board has found, on more than one occasion, (see three cases filed as exhibits: OPSEU (Collin) and Ministry of Community Safety and Correctional - 17 - Services, GSB No. 2001-1578, March 30, 2001 (Harris); OPSEU (Gillis et al) and Ministry of Community Safety and Correctional Services, GSB No. 2003-1520, May 16, 2008 (Abramsky); and OPSEU (Beltrano et al) and Ministry of Community Safety and Correctional Services, GSB No. 2003-3597, August 11, 2008 (Petryshen)) that there is a Code in operation among COs. As the Board described it in Beltrano: As the summary of the evidence discloses and as a number of decisions have referenced, there is a code of silence in correctional institutions which places considerable pressure on a CO to refrain from disclosing the misconduct of fellow officers to management. In a setting where COs rely on each other to a considerable degree for safety, it is perhaps not entirely surprising that the code of silence is a part of the reality of the correctional facility. Another aspect of this reality is that a CO who breaches this unwritten rule is likely to face serious adverse consequences. The code of silence operates to protect COs who engage in misconduct and to some extent it condones and encourages misconduct. The code of silence also operates to turn those COs who elect not to remain silent into victims. They will likely be labeled a rat and generally ostracized. They will often be harassed in various ways, inside and outside of their institution. They may find that the only way to address the stress associated with being labeled a rat is to change institutions or give up correctional duties. [50]-HQVHQ¶VHYLGHQFHDERXWZK\KHLQLWLDOO\refrained from reporting accurately and some of the consequences he claimed to haveVXIIHUHG SULQFLSDOO\KDYLQJEHHQSXEOLFO\± WKRXJKDQRQ\PRXVO\±ODEHOHGDVDUDWDQGWKHGLIILFXOWLHVKHKDVHQFRXQWHUHGLQKLVUHODWLRQV with fellow COs) after coming forward is consistent with the operation of the Code. I will return to questions of the operation of the Code and its significance in the instant case later. Suffice it to say that whether as a matter of how the person on the Clapham omnibus might view the situation, as a matter about which this tribunal may take official notice or as a matter which has already been proved and established in prior proceedings between thHVHSDUWLHVWKH³QRWHQWLUHOy VXUSULVLQJ´H[LVWHQFHRID&RGHLQ the general terms described in Beltranhas been established. [51],UHWXUQEULHIO\WR&RQVWDEOH0DUWLQ¶VHYLGHQce. It will be recalled that he testified WKDWWKHJULHYRUVKRUWO\DIWHUWKHLQPDWH¶VFROOapse, made a gesture to Constable Martin, which the latter had understood to mean the grievor was indicating he had punched the inmate. This evidence cannot be characterized as direct evidence of anything that transpired while the grievor and the inmate were alone together in the cell. It is, however, evidence of a communication - 18 - made by the grievor almost contemporaneous with the events. Thus, if this communication were clear in its contradiction of thHJULHYRU¶VVXEVHTXHQWVWDWHPHQts, it might be of significant ar probative value, perhaps even in the nature of an admission. The evidence is not, however, cle or unequivocal in that respect. Indeed, the witness himself acknowledged that he might have misunderstood the gesture. Further, even if this evidence might be seen to provide some support IRUWKHHPSOR\HU¶VFDVHLWLVFXULRXVWRQRWHLWVWLPLQJ±LWRFFXUUHG DVthe video would support) after the secondcell entry and would in that regard seem to be more logically connected to events during that period of time and, of course, there is no allegation before me that the grievor did anything untoward during the second cell entry. Thus, ConstablH0DUWLQ¶VHYLGHQFHLVRI limited utility and I have no hesitation in concluGLQJWKDWLIWKHHPSOR\HU¶VFDVHZHUHSUHPLVHG ight exclusively or even largely upon this evidence, that case would fail. I have returned to highl this evidence, however, not so much for its intrinsic value, but rather to set the stage for the JULHYRU¶VUHVSRQVHWRLWVRmething I will return to and which I found far more significant that 0DUWLQ¶VHYLGHQFHSHUVH [52]7KHJULHYRU¶VHYLGHQFHTXLWHDSDUWIURPLWVLQFRQVLVWHQF\ZLWKWKDWRIWKH employer witnesses, exhibits numerous difficulties. As with the other witnesses, I do not propose to catalogue all of the myriad inconsLVWHQFLHV±PDQ\RIZKLFh are of questionable significance and may simply be attributable to the unsurprising human inability to, on close examination, maintain a consistent version of events in all their intricate details over protracted periods of time punctuated by various accounts of the same events. There are, however, certain DVSHFWVRIWKHJULHYRU¶VHYLGHQFHZKLFKDUHPXFKPRUHSUREOHPDWLF [53]If the inmate and Jensen can be seen to have changed their accounts (quite early in the piece) from ones that excluded to ones that included the assault, the grievor demonstrated his own capacity for flexible accounts even in respect of the critical 28 seconds. [54]Most significant of all is the change LQWKHJULHYRU¶VDFFRXQt with regard to whether he even accompanied the inmate into the cell (the first time), let alone assaulted him there. Of course, there is now no dispute (the video and the accounts of all witnesses, including WKHJULHYRUDUHQRZXQLIRUPRQWKLVSRLQW ±WKHJUievor escorted the inmate into the cell and the - 19 - two emerged some 28 seconds later. The grievor, however, initially failed to acknowledge, indeed, specifically denied that he had entered the cell with the inmate on the first occasion. [55]The occurrence report the grievor prepared on the day of the events, makes no mention whatsoever of the first cell entry. And when asked about that during the CISU interview with Inspector Graham on January 30, 2004, the grievor categorically denied entering WKHFHOOZLWKWKHLQPDWH±KHFOearly acknowledged, indeed, made it a point to acknowledge that the inmate had entered the cell, but had done soDORQHRQWKHJULHYRU¶VGLUHFWLRQ'XULQJWKH allegation meeting, well over a year later, on May 18, 2005, the grievor continued to deny the first cell entry and made no use of the invitation extended to him by Superintendent Dalgleish to correct or clarify any portions of his account. Sometime between that date and the commencement of these proceedings several years later, the grievor acknowledged (at least through counsel and later in his own testimony) that he had entered the cell with the inmate. And there was little constancy in the reasons proffered by the grievor for his continuing failure to acknowledge the first cell entry. At various times he suggested that: nothing which transpired during the first cell entry (whether the inmate was alone or accompanied) was of any significance and therefore was not prominent in his recollection; he simply did not recall entering the cell with the inmate; he did recall it but, in particular at the allegation meeting, felt that the employer had already determined to discharge him and there was no point in raising it. [56]What I found even more telling than this ³HYROXWLRQ´LQWKHJULHYRU¶VDFFRXQWZDV his explanation, or lack thereof, of when or how his recollection of having entered the cell was revived. The denial is clearly inconsistent with the video images. We were never told precisely n when the video was first shown to the grievor. One would have thought that whatever the reaso for the grievor having not reported or recollected the first cell entry (i.e. whether it was a deliberate attempt to conceal wrongdoing or an innocent failure to recall insignificant events), viewing the videotape would have made it clear that either the subterfuge could not continue in its existing form or, alternatively, would have otherwise assisted in the recollection of a benign event. [57]Indeed, employer counsel specifically put to the grievor that he did not admit the ILUVWFHOOHQWU\XQWLOKHUHDOL]HGWKHUHZDVDYLGHRWRGHPRQVWUDWHLW±WKHJULHYRUKRZHYHU - 20 - explicitly denied that suggestion. But in re-examination the grievor confirmed that he had been provided with more information (i.e. he had seen videos and photos and read written statements) y in subsequent to the January 2004 CISU meeting and that that information refreshed his memor some way. No more specific explanation of how, when and whatWKHLPSDFWRIWKLV³PRUH LQIRUPDWLRQ´ZDVSURYLGHG$QGILQDOO\LQUHsponse to questions from the Board regarding when and how his view of whether or not he had gone into the cell changed, the grievor said that it was sometime during the CISU interview (i.e. prior to the discloVXUHRIWKH³PRUH LQIRUPDWLRQ´ DQGWKDWKHGLGQRWNQRZZK\KHGLGQ¶WWHOOWKH&,68people about having gone into the cell, but suggested he had not thought it was relevant.So while union counsel, in final argument, suggested (as did employer counsel, though for a different purpose) that viewing the recollection of the first cell entry, that YLGHRWDSHZDVVLJQLILFDQWLQWKHJULHYRU¶VXOWLPDWH submission (while it may well be true, though perhaps more in the fashion the employer suggHVWV ZDVVLPSO\QRWWKHJULHYRU¶VHYLGHQFH [58]I find these chains of evidence in the JULHYRU¶VWHVWLPRQ\WREHLPSRVVLEOHWR reconcile in any fashion favourable to him. It is one thing to simply not report an event if one is genuinely of the view it is of no significance, it is perhaps only slightly more troubling to simply not recall such an event, but to actually recall the event and to notPHUHO\³QRWPHQWLRQLW´EXWWR specifically deny it, while recollecting it, is extremely troubling and does not invite any benign explanation. [59]In a similar vein, I find it difficult to coPSUHKHQGWKHJULHYRU¶VIDLOXUHWRFOHDUO\ acknowledge that it was the viewing of the video that made it clear that any continued denial of the cell entry was untenable. (As already noted, in different ways and for different reasons, that was the import of questions put to him by both employer and union counsel). Frankly, had he simply and clearly acknowledged the role that viewing the video must have had, it is not clear to me that would have necessarily prejudiced his case. It may well have been plausible (assuming DOORWKHUDVSHFWVRIWKHJULHYRU¶VDFFRXQWZHUH true) to suggest that he had no particular recollection of a benign insignificant event until he was able to view the video record of it. Instead, the grievor offered a reflex denial to the suggestion of the importance of the video by employer counsel and then later went on (almost as if to bolster that denial) to acknowledge that he was in fact aware of and recalled the first cell entry even at the time of the CISU interview. In - 21 - my view, this sequence and combination of HYLGHQFHVHULRXVO\XQGHUPLQHVWKHJULHYRU¶V credibility. [60]I have similar difficulties in response WRWKHJULHYRU¶VHYLGHQFHUHJDUGLQJWKH ³JHVWXUH´&RQVWDEOH0DUWLQWHVtified to seeing. Again, I am not persuaded that Constable 0DUWLQ¶VHYLGHQFHVWDQGLQJDORQHKDVDQ\JUHDWSUobative value. It is evidence of a gesture made near the conclusion of the second cell entry and to the extent it has any significance, one might have thought that would relate to events during the second cell entry. But no impropriety is alleged or proven or relied upon by the employer in relation to that. And, in any event, a gesture and certainly the one reported, hardly has the same clarity as the words of an admission, words the employer, effectively, asks me to transform the gesture into. And even Constable Martin himself acknowledged that his interpretation of the gesture might not have been accurate. [61]The grievor denied that he made the gesture that Martin reported and testified to. In fact, he repeatedly claimed to have no recollection at all of having made any gesture. Notwithstanding that, he offered his speculation on the (non-incriminating) different gesture he mayhave made. On three separate occasions in his evidence the grievor coupled his assertion of having no recollection of having made any gesture with a speculative description (using FRQGLWLRQDOIRUPXODWLRQVOLNH³PLJKWKDYH¶RU³ZRXOGKDYH´ RI what the gesture could have at the grievor been. I find this juxtaposition suspect and unconvincing. It leads me to conclude th was doing little more than attempting, at the expense of veracity, to undercut the perceived effect of CoQVWDEOH0DUWLQ¶VHYLGHQFH,QP\view that has precisely the opposite effect. ce, [62]There were other, albeit less significant, aspects ofWKHJULHYRU¶VHYLGHQ demonstrating its internal inconsistency and implausibility, which gave me pause. I do not find it necessary to catalogue these in intricate detail. They included varying and shifting explanations for the cell entry, some of which (as did the grievoU¶VGHVFULSWLRQRIWKHLQPDWH fficult to reconcile with the video images. ³VWDJJHULQJ´LQWRWKHFHOOWKHVHFRQGWLPH ZHUHdi 7KHUHZHUHDOVRLQFRQVLVWHQFLHVLQWKHJULHYRU¶Vevidence and past reports related to the history of the acquaintance between him and the inmate. - 22 - [63]In short, and quite apart from the cRQIOLFWZLWKRWKHUZLWQHVVHV¶WHVWLPRQ\ supporting the conclusion that the grievor struck the inmate, there are reasons to approach the JULHYRU¶VHYLGHQFHZLWK significant caution. [64]This is not, of course, to say that thHHPSOR\HU¶VHYLGHQFHLVIUHHIURPTXHVWLRQ. And it is undoubtedly the evidence of Cole Jensen that, in my vLHZLVSLYRWDOWRWKHHPSOR\HU¶V FDVH)RUHYHQLIWKHLQPDWH¶VHYLGHQFHPXVWEH handled with some care and even if Constable MartLQ¶VHYLGHQFHLVRIOLPLWHd probative value, there remains the direct evidence of another eyewitness testifying that he saw the grievor strike the inmate. [65]Jensen did, however, initially provide a contradictory account of the events. He explained that he did so because, at least initially, he did not wantWR³UDWRXW´DIHOORZ&29HU\ early on in the piece, however, he came to realize the seriousness of having provided a false account to the police investigators and from that point forward was constant in his assertion that he had seen the grievor struck the inmate. [66]It is here that the employer seeks to invoke the prevalence of the Code to explain DQGSHUKDSVH[FXVH -HQVHQ¶VLQitial reluctance to report. But the union, on the other hand, urgeVPHQRWWRDFFRUGVRPHVRUWRI³VXSHUFUHGLELOLW\´WR-HQVHQ¶VHYLGence merely because the employer paints him as defying the Code. [67]The time, energy and effort invested by the employer into its portrayal of the Code are out of all proportion with its significance in the case.This case is not about the Code and I will therefore limit my comments in relation to it. However, I must observe that the employer may well need to develop a more comprehensive and rational strategy in respect of its treatment of the Code. It cannot purport to occupy the moral high ground, as Inspector Graham did in much of his testimony, painting the Code (not unjustifiably) as an obstacle to justice and integrity in Correctional Services and then be seen, as in this case, to be somewhat indifferent to its operation. There is little doubt that CO -HQVHQ¶VFRQGXFWRQKLVRZQDFFRXQWPD\ZHOOKDYH EHHQZRUWK\RIVRPHGLVFLSOLQH±LQWKHFLUFXPstances as they unfolded, it may not be surprising that did not occur. However, the evidence before us and, in particular, the video images suggest that there may have been numerous other COs who also failed to report, under-reported or mis- - 23 - reported events they had witnessed. Many (though not all) of these individuals were not called to testify. There is no evidence before me that the employer considered or took any steps to discipne or otherwise specifically investigate thlie operation of the Code and its impact in the present case. [68]In any event, and whether or not I take specific account of the Code and its operation in the instant circumstances, I find CO JeQVHQ¶VH[SODQDWLRQIRUKLVLQLWLDOIDLOXUHWR report what he had witnessed to be both plausible and credible. In other words, while his conduct may well give rise to the classic credibility question, I believe he was telling the truth when he admitted to having initially lied during the earliest phase of the investigations resulting from the incident. I understood his initial reluctance and even reticence on the witness stand to be a further reflection of the constraints upon his testimony, whether those be his discomfort with perceived future ostracization, his unease at being required (under summons) to testify against a fellow CO, or his discomfort at having to publicly acknowledge his own misdeeds. [69]Even more significant, I can find no plDXVLEOHH[SODQDWLRQ±GHVSLWHXQLRQ FRXQVHO¶VYDOLDQWHIIRUWWRFRQVWUXFWRQH±IRUwhy Jensen would testify to the grievor having struck the inmate if that was not what he had seen. Indeed, a comprehensive theory to explain any such nefarious motive would, almost of necessity, suggest some kind of conspiracy involving, at a minimum, the participation of Jensen, the inmate, DQGDQDJHQWRIWKHHPSOR\HU± there is not the hint of any evidentiary foundation for even the inference of such a conclusion. [70]2QWKHRWKHUKDQGWKHJULHYRU¶VHYLGHQFH HYHQDSDUWIURPWKHGLUHFW FRQWUDGLFWLRQZLWK-HQVHQ¶VDERXWZKHWKHURUnot he struck the inmate) was replete with inconsistencies and vagaries that were difficult to reconcile with any honest desire to tell the truth. And neither is it difficult to posit an explanation, rooted in the grieYRU¶VRZQVHOILQWHUHVW for denying the assault. [71]In these circumstances, I have no difficult\LQDFFHSWLQJWKDW-HQVHQ¶VYHUVLRQ (supported by the evidence of the inmate and, to a much lesser extent, that of Constable Martin) is accurate. In other words, I am satisfied that, during the 28 seconds in question inside the cell, There was no evidence to support any conclusion that a use of the grievor struck the inmate. - 24 - force was required. In the circumstances, there can be no question that there were grounds for the imposition of discipline. [72]Union counsel acknowledged that the manner in which the instant case unfolded transformed the matter into what ZDVDODUJHO\³DOORUQRWKLQJ´SUoposition. Either the grievor did not strike the inmate as alleged, in which case the grievance would be allowed with full remedial entitlements or the grievor not only struck the inmate but lied about it and continued to do so throughout these proceedings and, in that context, no evidence had been proffered, at least not in direct relation to the events giving rise to the discharge, to support reasons to mitigate the penalty imposed. [73]Notwithstanding that, the union still argued that, even if I were to find, as I have, that there was some basis for the imposition of discipline, I ought nonetheless to modify the penalty. [74]7KHXQLRQ¶VVXEPLVVLRQVZHUHURRWHGLQ an application of the doctrine of discrimination in two respects. [75]First, the union points to discipline previously imposed on the grievor by letter dated February 4, 2005. This was a three-day suspension imposed on the basis that the grievor used excessive force with an inmate and failed to comply with minimum reporting requirements. There is some irony in the fact that the employer did not rely on this prior discipline to support the discharge, but the union refersWRLW±DQXQGLVSXWHGH[FHVVLYHXVHRIIRUFH±WRDUJXHWhat the f force penalty in the instant case ought to be reduced.If the first instance of an excessive use o warrants a three-day suspension, the union argues, then a subsequent incident, given the requirements of progressive discipline, ought to warrant a penalty short of termination. [76]I am not attracted to this argument. First, there can be a broad range of facts that might constitute an excessive use of force (recall InspHFWRU*UDKDP¶VDVVHUWLRQWKDWHYHQthe JULHYRU¶VWRXFKLQJWKHLQPDWH¶VHOERZZDVDQH[FHVVLYHXVHRIIRUFH±RQHZKLFKGLGQRWDSSHDU to significantly trouble Superintendent Dalgleish). The documents filed do not permit a determination as to the precise nature of the prior use of force. Perhaps as significant, however, - 25 - while the prior discipline refers to failure to comply with reporting requirements, there is nothing in its conclusions (as perhaps distinguished from the initial allegations) that explicitly includes the submission of false and misleading reports. In short, apart from the fact that the conduct falls under the generic heading of excessive use of force, I am not in any position to draw conclusions about the equivalency of the conduct. [77]The second argument advanced by the union centers on the lack of discipline (though the union did not wish to be seen as advocating that result) on any other COs as result of the incident or, more accurately, the lack of reporting regarding it. I have already adverted to some concerns in that regard, particularly in YLHZRIWKHHPSOR\HU¶VLGHQWLILFDWLRQDQGUHOLDQFH on the Code as a workplace evil. The fact remains, however, that even if some discipline might have been visited on other employees, there is nothing to suggest that their roles related to the actual assault or that they had any direct role or responsibility in that regard. Thus, there can be no eqXLYDOHQF\DVEHWZHHQWKHJULHYRU¶VFRQGXFWDQGWKHXQGLVFLSOLQHGFRQGXFWRIRWKHUV [78]The grievor committed a serious offence. This was not a technical use of force. It was substantial. There was no evidence to support the need to use any force in the circumstances. Quite apart from the obvious difficulties, excessive use of force brings the administration of justice into disrepute, damages the reputation of the Ministry and subjects it to financial liability. The grievor had some 6-1/2 years of seniority at the time of the incident. That, in and of itself, is not sufficient, in my view to warrant an alteration to the penalty imposed. Not only did the grievor commit a serious offence, he was less than honest about what he had done and, before this Board, continued to deny and obscure his misconduct. In short, I am not satisfied that it would be just or reasonable to interfere with the penalty imposed. [79]The grievance must therefore be and hereby is dismissed. th day of February 2011. Dated at Toronto this 8 Bram Herlich, Vice-Chair