HomeMy WebLinkAbout2019-1201.Haist.23.10.25 Decision
Crown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
GSB# 2019-1201
UNION# 2019-0252-0018
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Haist) Union
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE Brian McLean Arbitrator
FOR THE UNION Kamal Bakhazi
Koskie Minsky LLP
Counsel
FOR THE EMPLOYER Julia Evans
Treasury Board Secretariat
Legal Services Branch
Senior Counsel
HEARING April 1 and 19, May 17 and 19, 2021;
February 14, March 21, October 12,
November 14, 2022;
January 9, April 3, May 18 and 26, 2023
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Decision
[1] This is a discharge grievance. At the time of his discharge the Grievor was a
correctional officer (CO) working at Niagara Detention Centre. He was
represented in his employment relations with the Employer by the Union. On or
about May 4, 2019, he got into an altercation with an inmate (“Inmate T” or “the
Inmate”). In the altercation, the Inmate assaulted him and the Grievor used force
to attempt to subdue the Inmate. Eventually other COs arrived on scene and the
Inmate was subdued and taken to an isolation cell. While the Employer has other
grounds for discipline and discharge, one of the central issues in this case is
whether the Grievor used excessive force in attempting to subdue the Inmate. The
Employer called witnesses to describe what had occurred and to speak about
training and appropriate use of force methods. There was also Employer video
evidence which was heavily relied on by both parties. The Union relies on the
cross-examination of those witnesses and oral evidence given by the Grievor.
This decision determines the grievance of the discharge.
The Facts
[2] In setting out the facts, I rely on the oral and documentary evidence before me. In
addition, as noted, important evidence in this proceeding were videos which show,
without sound, much of what occurred in the incident which led to the termination
of the Grievor’s employment. However, some of the most important events
(including, most importantly, some of the force used by the Grievor against Inmate
T) are not so clearly seen on the videos as the view of the camera is both
awkwardly placed and partially or wholly obstructed by the bodies of people
involved in the incident.
[3] The Grievor has been a CO since May 2016, starting at Hamilton Wentworth
Detention Centre. He moved to Niagara DC in or about March 2019. He spent the
first period of his employment at Niagara DC shadowing other COs to understand
and get used to his new workplace. Niagara DC is a maximum-security
correctional facility.
[4] The events which led to the Grievor’s discharge took place in a dayroom in 1 wing
(the maximum-security wing) in the institution. The dayroom has several tables
and chairs which are fixed to the floor. Inmate T was sitting on a tabletop with his
feet on a chair. There were a few other inmates standing and lounging around the
area. At the time, the maximum-security unit was a “special needs” unit which
housed more vulnerable inmates who were effectively in protective custody and
who would be at risk of being victimized in other units. Inmate T was one of the
inmates with special needs.
[5] The Grievor gave evidence that in the morning he and Inmate T had a
disagreement. It started when Inmate T began complaining vociferously about
another inmate. Apparently, the other inmate had mental health issues or was
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under stress and had been placed in the unit the day before and kept Inmate T up
much of the night by making loud noises. Inmate T’s complaints were so severe,
and according to the Grievor so aggressive, that the Grievor decided to confine
him to his cell for the remainder of the morning so that he could calm down. The
Grievor testified that in this period Inmate T repeatedly asked what the Grievor’s
name was and where he lived. The Grievor did not tell him. Although inmates
often know the names of COs, because the Grievor was relatively new to the
institution, his name was not known. The Grievor testified that he was disturbed
by the request for his address because in his mind that could only mean the
Inmate was up to no good. However, he did not report his concerns.
[6] The Grievor took lunch and afterwards spoke with Inmate T to see if he had
calmed down. The Grievor believed he had calmed down and was ready to come
back to the dayroom with the other inmates, so he let him out. Until the incident,
there was no suggestion that Inmate T was acting up after being let out of his cell.
Prior to the incident, Inmate T can be seen on the video sitting on a table talking
with another inmate.
[7] The Grievor is required to conduct rounds of the unit every 30 minutes. Rounds
involve walking through the dayroom, looking in each cell, and making contact with
an electronic device(s) at the far end of the dayroom to confirm the round has
been completed. The incident took place as the Grievor was completing a round.
During the round, there were no other COs in the dayroom; the Grievor’s partner
was located outside the dayroom at the door, likely watching the Grievor as a
protective measure as he conducted his round.
[8] Inmate T was sitting on a tabletop with his feet on the chair. He appeared to be in
a good mood as he continued to chat with other inmates. At a certain point, the
Grievor passed in front of Inmate T on the way to the far end of the dayroom.
They had a brief verbal interaction (there was no evidence of what was said),
although the Grievor did not stop or slow down and he continued walking to the far
end of the dayroom (where the round electronic device was located) which was
reasonably close to where Inmate T was sitting.
[9] After the Grievor had activated the electronic device at the end of the dayroom, he
began to return to the other side of the dayroom, this time passing behind Inmate
T. He looked at Inmate T and may have said something to him although that is not
clear. After the Grievor had passed by Inmate T it appears on the video as if
Inmate T said something to the Grievor. In any event, the Grievor turned his head
and looked at Inmate T. It appears the Grievor said something to Inmate T and at
the same time made a pointing gesture away from Inmate T to the other end of the
dayroom. The Grievor continued walking away from Inmate T who remained
sitting on the table with his feet on the chair.
[10] At this point, something odd happened. The Grievor was at least 20 feet away
from Inmate T when it appears on the video that Inmate T said something to him.
The Grievor’s response was to laugh uproariously in a full body laugh. At the time
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the Grievor started laughing (or very shortly thereafter) Inmate T had turned his
head and was no longer looking at the Grievor.
[11] The Grievor’s evidence in examination-in-chief was that he did not hear what
Inmate T said but he laughed as a sort of coping mechanism or nervous response.
He testified that he assumed that what Inmate T said to him was either a smart-
aleck remark or a threatening comment. The Grievor testified that he came to the
conclusion that it had not been a smart-aleck remark due to the look on the Inmate
T’s face and because of their confrontation earlier that morning. Accordingly, his
evidence was that he assumed Inmate T made a threatening expression.
[12] This “assumption” was not in the occurrence report written by the Grievor shortly
after the incident. In that report and the addendum to it, the Grievor stated that
Inmate T shouted something at him but because of the noise in the dayroom he
could not hear what was said. The initial occurrence report says nothing about
how Inmate T appeared and an addendum to that report states that the Grievor
believed Inmate T looked “frustrated”.
[13] Under cross-examination, it was pointed out to the Grievor that in the meeting with
management where he had the opportunity to respond to the allegations against
him (“the allegation meeting”), he had not said anything about a threatening
remark but only said “I laughed assuming it was a smart aleck remark due to the
look on his face”. Later in that meeting, he was asked what was funny about what
Inmate T had said (and which caused the Grievor to laugh) and, according to the
notes of the meeting, which are not disputed, the Grievor responded something to
the effect of “I didn’t hear, assumed smart ass remark, it’s a coping mechanism by
laughing”. As a follow up in the allegation meeting, he was asked how he came to
that conclusion, and he responded to the effect that it was an “assumption” and “a
poor judgment call”.
[14] Returning to the narrative of the incident, I note that, in the minutes that were to
follow the Grievor’s assumption about the Inmate, the Grievor did not act as if he
had been threatened. In fact, he engaged in conduct that made himself vulnerable
to Inmate T. Moreover, I am satisfied that the volume of noise in the dayroom was
not as high as the Grievor claims. This is discussed below. Furthermore, the
Grievor’s claim in the addendum to his occurrence report that Inmate T appeared
to be “frustrated” contradicts his evidence that he did not want to speculate about
the Grievor’s state of mind in his occurrence report. The Grievor was content to
speculate that the Inmate was frustrated but claims to have been unwilling to say
that he looked threatening. Given these facts and the fact that the Grievor did not
raise the idea that the Inmate was threatening until his evidence-in-chief, I find it
more likely than not that the Grievor made this up to have the Inmate seem more
of a threat in order to attempt to sway my assessment of the Grievor’s conduct.
[15] The Grievor spoke to another inmate for a moment and then came over to Inmate
T who remained sitting on the table. While he approached Inmate T, the Grievor
was speaking to him (they were still more than ten feet apart) the entire time and it
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seems that Inmate T was speaking back. The noise level in the room did not seem
to interfere with their discussion. The Grievor arrived in front of Inmate T, facing
him, standing in a way that the Grievor acknowledges was not a proper defensive
interview stance as he had been trained. The Grievor was also standing too close
to the inmate; their heads were 18-24 inches apart. This was dangerous as the
Grievor was more vulnerable to an assault than if he had been further away in the
proper stance. The Grievor acknowledged this in his evidence. I find that the
reason the Grievor got so close to the Inmate was in an effort to intimidate him.
[16] For the next approximately 65 seconds the two men stayed in the same place. In
my view, the Grievor did most of the talking. On the video, through his body
language and hand gestures, it looks like he was lecturing the Inmate. Other
inmates were going about their business, although two inmates were clearly
watching the interaction intently from about six feet away. In fact, one of them
moved to a better angle and sat on the table next to the table which Inmate T was
sitting on although he remained about six feet away. Later in the conversation, a
third inmate moved to the area to intently watch what was going on. No inmate
was called as a witness.
[17] From the evidence, it was somewhat unclear what the Grievor was telling Inmate T
for that first 65 seconds of the interaction (more if one counts the time when the
Grievor was speaking to the Inmate as he was approaching him). The Grievor
testified in examination-in-chief that they were engaged in a conversation in which
he was asked the Inmate why he was acting up again. He told him “I thought we
were good”. He told him if he misbehaved, he would be locked up for the rest of
the Grievor’s shift. Although, this is not necessarily what the Grievor told the
investigators in his allegation meeting, I accept this evidence at least to explain
part of what was said. It is consistent with the hand gestures the Grievor was
making where he was pointing towards the cells at the other end of the dayroom
(as he had done previously) as if to say, “That is where you will be going”.
[18] After approximately 60 seconds of conversation, the Grievor moved much closer to
Inmate T. Inmate T remained seated on the table with his feet on the chair. The
Grievor, standing, is somewhat taller than the Inmate sitting. The Grievor looked
down at him. Their heads were an inch or two apart; their mouths were perhaps
six or seven inches apart. It appears to me, and I find, that the Grievor was trying
to further intimidate the Inmate by “getting in his face”.
[19] In examination-in-chief, the Grievor said that he got so close because the Inmate
had told him his “full name and address”. He said that he found it very scary and
terrifying that Inmate T had found out this information. The Inmate said that his
name was Michael Haist and that his address was [#] [street name omitted] in [city
omitted]. He had a young family at home and was concerned that something
would happen to them while he was at work. In the Grievor’s view, Inmate T said it
to see the surprise on his face; he wanted him to know that he knew.
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[20] The Grievor was then asked by Union counsel at what point the Inmate had told
him he knew his name and address. The Grievor surprisingly answered that he
had done so in the beginning of their conversation. Counsel then asked what he
had said for the next 60 or so seconds. He could not recall (despite having
testified earlier about it) and asked to see his occurrence report to refresh his
memory. Counsel asked him to do the best he could without the report. The
Grievor claimed that he found it difficult to remember since he was in such an
emotional state at the time and that he was “a little upset”. He did recall that the
Inmate was doing a lot of swearing. The Grievor in his evidence again raised
concerns about the danger to his family.
[21] In his occurrence report the Grievor gave quite a different story about the nature of
the conversation between the two men and what had motivated him to get so close
to the Inmate. The occurrence report stated, “…due to the amount of noise in the
day room I was unable to hear him, therefore I moved in closer to have a
conversation. Inmate T continued to mumble and speaking very quietly now and
again due to the volume in the day room I was unable to hear him, and I moved in
closer. At this point he said “Do you want to go to the hospital…” In the
addendum to the Grievor’s occurrence report he stated: …I approached him to the
front so we could have a face-to-face conversation and I asked him in a calm
manner what he had shouted at me. He then became very quiet and started to
mumble his words, I was still unable to hear him; therefore, I approached him even
closer to make out what he was trying to tell me. The reason I wanted to know
what he was saying was due to his behavior earlier in the day I wanted to be sure
his safety along with the safety of other inmates was not in danger. During this
brief conversation I remained calm and was simply trying to figure if there was an
issue I had to resolve. I asked him if there was an issue and he replied to me by
asking me “do you want to go to the hospital?”. It is notable that the Grievor’s
occurrence report says nothing about the Inmate knowing his address.
[22] Under cross-examination on these points, the Grievor’s story lost much of its
credibility. He agreed that the fact that the Inmate said something threatening had
not been included in his occurrence report or addendum to it because it was an
assumption. However, that assumption did not appear to have an effect on the
Grievor’s actions. It did not cause him to get back up or to stand an appropriate
distance from the Inmate, it did not cause him to stand in the interview stance as
he had been trained, and it did not prevent him from closing into the Inmate’s
personal space, leaving him wide open to be assaulted.
[23] In fact, the Grievor’s story that the Inmate “shouted” at him, and he could not hear
what he said due to the noise on the dayroom (from the television etc.) is also
questionable. During the videos it is possible to see inmates talking to each
standing a normal distance apart. One can also see the Grievor making
comments to Inmates as he passes by them from a few feet away. In fact, prior to
the Grievor’s laugh, he spoke with Inmate T from about 20 feet away, apparently
without any difficulty. He also spoke to him after the laugh as he approached
Inmate T, again starting at about 20 feet away.
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[24] The Grievor was asked about the allegation meeting where the Grievor had been
asked about what had been said. He stated, according to the notes taken, the
essence of which were not disputed, “The conversation was based on the
behaviour of him going to 2 wing, he was dictating how the range would be run, I
said for him to go 2 wing with the big guys, inmate said he would make the rules. I
told him if he continued he would be going to 2 wing”. The Grievor was asked
what else was said and he responded, according to the notes: “it was a while ago,
he asked me my name in the morning and then said my full name and that he had
found out. I asked him if he was proud of that and what he wanted to do with the
information intimidate, want my address? You coming to my house are you
threatening me? What is happening here?” The Grievor was asked what the
Inmate’s response was and he responded “smirky smile, he was asking my name
earlier, I cannot recall correctly it's been a while. Smirky smile and said do you
want to go to the hospital? When I went to respond that is when everything
happened”.
[25] In the allegation meeting, the Grievor was then asked why he had moved so very
close to the Inmate. The Grievor’s answer was that he “could not recall the exact
words but the Inmate knew his information and he was concerned for his family
while he was at work. He stated that moving so close to the Grievor was another
error in judgement, but he was a new father, and he was very emotional. At that
point the Inmate asked him if he wanted to go to the hospital”.
[26] Finally, in the allegation meeting the Grievor said something telling in his response
to a question about why he had gotten so close to the Inmate the first time. The
notes suggest the Grievor said “he was talking quietly. I didn't know it was myself
that was in danger... I didn't know I have myself was in danger.” The Grievor was
then asked, “he's threatening why closer, he was trying to intimidate you and you
went closer, you are not trained to invade personal space”. The Grievor
responded:” at that point I approach close to show he wasn't intimidating. If I
would have turned away, I might as well turn over my keys and walked off the
range, I would have lost all credibility. I have to address the behavior, that's how I
choose to; poor judgment I shouldn't have gotten that close”. He was then asked if
he was trying to intimidate the Inmate. He responded that his intention was that
the Inmate was not going to intimidate him.
[27] The Grievor testified in cross-examination that he had come to the Inmate T to tell
him that he could not hear him and wanted to see if the Inmate still had an issue
arising out of the morning’s events. Counsel for the Employer asked him if he
puffed out his chest to make himself look big. The Grievor denied doing so and
agreed that he was bigger than the Inmate although they were about the same
height when the Inmate was sitting on the table.
[28] This is a useful point at which to discuss the Grievor’s claim that Inmate T knew
his address. This is an important point for the Union because in its view it explains
the Grievor’s state of mind and perhaps some of his actions. The Union, in effect,
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asks me to give him a break because the Inmate knew the Grievor’s personal
information, and he believed that his family was at risk.
[29] As noted above, the Grievor’s evidence was that near the time he had been
confined to his cell in the morning the Inmate repeatedly asked the Grievor for his
address and the Grievor was disturbed by this request. Later, during their close
interaction, according to the Grievor in examination-in-chief, the Inmate told him
his “full name and address”. He also said that his address was, as noted above,
[#] [street omitted] in [city omitted]. This claim turned out not to be true. Under
cross-examination, the Grievor’s evidence was that the Inmate only knew his
street name and City. Counsel for the Employer suggested to him that in his
examination-in-chief he had said the street number, street, and City (which was
true, that was the Grievor’s testimony as is described above). The Grievor
responded “I just said he had my address; I did not go into details”. Given that I
recorded the Grievor’s full address at the time he gave his evidence, the Grievor’s
answer to counsel could not be true.
[30] Employer counsel also asked the Grievor about what he had said in the allegation
meeting. The notes suggest (and he does not deny) that he said something to the
effect of “… then said my full name and that he had found out. I asked if he was
proud of that and what he wanted to do with the information intimidate, want my
address? You coming to my house are you threatening me? What is happening
here?” The Grievor disagreed that the notes suggest it was he who had raised the
idea to Inmate T that he was going to come to his house. The Grievor therefore
has no explanation for why he would tell management that he asked the Inmate
“Do you want my address?”.
[31] Counsel then noted that the Grievor’s claim that the Inmate had his address was
not stated in his occurrence report or addendum or as noted, in the allegation
meeting. The Grievor answered: “No. I guess it did not cover my specific
conversation. I left it out of my report. That might have been a mistake on my
part”. The Grievor was also advised that the Inmate had reported that the Grievor
had given him the address. The Grievor denied giving him his address. As noted,
the Inmate was not called as a witness.
[32] Later in cross-examination, the Grievor was asked about his evidence that he told
the Inmate that he would put him in his cell if he could not control his behaviour.
The Grievor agreed that he had not put that in his occurrence report but had said it
at his allegation meeting. He also agreed that he had told the Inmate that he
would need to “go to 2 wing” if he did not behave. Counsel for the Employer asked
the Grievor whether what he was really doing with that statement was threatening
to put Inmate T with tougher inmates. The Grievor agreed that the inmates in 2
wing were a “different kind of inmate” but denied that they were tougher. The
Grievor was then asked why he had said to the Inmate that he would put them with
the “big guys”. He denied that the words “big guys” meant anything and was not a
threat to the Inmate. However, he agreed that Inmate T was in the maximum wing
because he had special needs and was not in a regular wing for his own safety.
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He also agreed that he did not have the authority to move Inmate T. He ultimately
agreed with counsel that telling the Inmate that he might be moved to 2 wing could
be seen as a threat but claimed it was not his intention.
[33] Returning to the factual narrative at the point at which the Grievor moved
extremely close to the Inmate, the Grievor was in extreme close proximity for
about two seconds. I have carefully reviewed the videos and I see no indication
that the Inmate said much, if anything, in those two seconds. However, I cannot
discount the possibility that the Inmate threatened to put the Grievor in the
Hospital. It is clear the Grievor was speaking to the Inmate in a forceful manner
for that time. In any event, at this point the Inmate reached out and placed two
hands on the Grievor’s collar bone/chest area and pushed the Grievor away. In
my view it is clear that the push was designed to get the Grievor out of the
Inmate’s face. It was nevertheless an assault and was unacceptable behaviour.
The Grievor stumbled away from the Inmate, taking two steps backwards. This
was a turning point in the interaction between the two men. After being pushed,
the Grievor was approximately two to four feet from the Inmate, likely three and
one half feet at chest level. No other inmate had moved towards the two or had
increased the threat. Inmate T remained seated on the table with his feet on the
chair. Although in evidence the Grievor said that it would have been unsafe for
him to disengage at this point (due to the presence of inmates and the wall/cell
door behind him), I disagree. In my view, he had plenty of room to do so.
[34] Instead of disengaging, as was his right, the Grievor moved towards the Inmate in
order to take control of him, which was also his right. The Grievor had been
assaulted by Inmate T and, as the Employer’s use of force expert witness, Robert
Houston, made clear in his evidence, it was open, although not preferable, to the
Grievor to take control of Inmate T through the use of force. The Grievor moved
quickly. He placed his right hand on Inmate T’s collar bone area, but the Inmate
turned away. He tried to grab the Inmate but was unable to do so. Eventually, he
grabbed the Inmate’s shirt collar with his right hand and around the Inmate’s back
with his left hand. Unfortunately, in doing so he had lowered his head, face down,
to below the Inmate’s head height. The Inmate was still sitting on the table and
took the opportunity to deliver five or six quick violent strikes to the Grievor’s head
with his fist and/or wrist. The Grievor testified that he found these blows scary and
disorientating and his vision became blurry.
[35] At this point the Grievor pulled the Inmate off the table and attempted to wrestle
him to the ground. The Grievor testified that he did so in order to control a
rebellious inmate, which I accept. The Grievor pushed the Inmate against the cell
door which was behind the Grievor at the time he was close to the Inmate. The
Grievor, who is larger than the Inmate, used his body to pin the Inmate to the cell
door for a moment. The Grievor then put his arm around the Inmate’s neck with
his hand on his shoulder and used his body weight to drop the Inmate to the floor
with the Grievor on top of him. The Grievor’s evidence was that he put his arm
around the Inmate’s neck in order to protect the Inmate’s head as he fell to the
floor and, in fact, the Inmate suffered no injury to the back of his head despite
being dropped with the Grievor’s weight on him. The Inmate continued to resist.
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There was no suggestion that the Grievor said anything to the Inmate throughout
this episode. In other words, he did not use “tactical communication” as he was
trained to do. The Grievor acknowledges that this was a mistake.
[36] After the Grievor pulled Inmate T to the floor, the two ended up in an area of the
dayroom just beyond the table and a few metres short of the end wall. The
Grievor was on top of Inmate T and they were essentially wrestling as the Grievor
attempted to gain control and Inmate T continued to resist. Eventually, the Grievor
appeared to get control of the Inmate’s wrist by employing a “c clamp” technique.
The Grievor then squeezed his legs around Inmate T’s legs in a position the
Grievor called “top mount”. He controlled the Inmate’s wrists with his hands, and
he controlled the Inmate’s legs with his legs with his body weight on the Inmate.
The Inmate continued to struggle physically and, according to the Grievor was
yelling at him, threatening him: “I am going to fucking kill you”. The Grievor’s
evidence was that Inmate T was also head-butting him from close range.
[37] Within ten seconds of the two men landing on the ground the Grievor’s support
officer, CO Creighton, arrived on the scene. CO Creighton put on his gloves which
took several seconds. During this time another officer, CO Dykstra arrived, and
she put on her gloves and knelt down on the floor to the Grievor’s right and she
immediately attempted to get control of the Inmate’s left wrist. However, she could
see that the Grievor had control of that wrist which was nearest her, and she
stepped back. Then, because the Inmate continued to resist, she moved in close
again. At the same time, CO Creighton finally got his gloves on, approximately 15
seconds after arriving on scene, and attempted to assist the Grievor on his left
side in controlling the Inmate’s right wrist. The Grievor was critical of the two COs.
He believed they waited too long to assist him which, particularly in the case of CO
Creighton, is a fair comment. His evidence was also that he was telling the Inmate
to stop resisting during this period.
[38] CO Dykstra testified that on the day in question she was told to go to 1 wing for a
“code blue” (officer in distress) and ran there and observed that the Inmate was on
his back and the Grievor was on top of him. She testified that she went to the right
of the Grievor and used her right hand to grab the Inmate’s left wrist and her left
hand to grab the Inmate’s left elbow.
[39] She observed that CO Creighton had also arrived and was doing the same thing
with the Inmate’s right wrist and elbow. At the time CO Dykstra was attempting to
secure the Inmate’s arm, her testimony was that the Inmate and the Grievor were
exchanging words. The Grievor said “You will never swing at me again” and “You
are dead”. The Inmate was saying “Get off of me” and did not make threats. In
cross-examination the Grievor agreed that he remembered Inmate T saying, “Get
off me”, although prior to that point he had never mentioned it. No other CO, of the
several who arrived on scene, heard the Grievor making threats. In my view, what
the Grievor said to the Inmate is not a significant aspect of the case and I make no
findings about it.
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[40] CO Dykstra testified that she observed the Grievor make a closed fist with his right
hand and strike Inmate T on the left side of the Inmate’s face a few times. She
does not recall the exact number of times. In response she told the Grievor to stop
and get off the Inmate. In her recollection, the Grievor did not stop but put his
hand around the Inmate’s throat area.
[41] CO Dykstra then reviewed the video, identifying various persons, and then was
asked about her occurrence report. She recorded in her report that the Grievor
told the Inmate “You are fucking dead you cunt” which was somewhat different
than what she had testified to. She testified that it was very hard for her to report
on a fellow CO because they have each other’s backs. However, she believed
that the Grievor put her in a position where she had to say exactly what happened.
She realized also that if she did not tell the truth she could lose her job.
[42] Under cross-examination, CO Dykstra was questioned extensively about her
actions as could be discerned from the video. On reviewing the video, she found it
difficult to tell what she was doing and identifying at what point she asserted that
the Grievor was punching the Inmate. She was also pointed to instances where it
appeared-and she agreed-that she was trying to grab the Grievor’s arm rather
than the Inmate’s arm. While the Union argued that this was inappropriate
assistance to the Inmate and put the Grievor in danger, I am satisfied that she was
doing this in order to stop the Grievor from throwing punches at the Inmate and to
cause him to get off him. The fact that she would do this at all is evidence that she
believed in the moment that the Grievor was acting inappropriately.
[43] She was asked whether she saw any contact between the Grievor’s hands and the
Inmate’s face and she replied, “I guess not, no”. She also agreed that she did not
secure the Inmate’s legs and neither did anyone else which, as will be seen,
allowed the Inmate to kick out as the Grievor got off him.
[44] She also agreed that she was shouting at the Grievor and not at the Inmate. She
did not tell the Inmate to “stop resisting”. While she thought that the Grievor was
the aggressor, she agreed that the Inmate continued resisting throughout the time
she was present. She stood by her occurrence report regarding the things that
she heard the Grievor say and had no explanation for why those things were not
reported by others. She also had no idea why she did not hear things that the
Inmate was reported to have said, that were heard by others. The Grievor denies
saying the things that CO Dykstra testified he said.
[45] CO Creighton was also called as a witness by the Employer. He knew the Grievor
at the time of the incident, but they had only worked a few shifts together. He was
the Grievor’s support officer at 1 wing and saw that he was in an altercation. He
arrived on scene and saw the Grievor on top of the Inmate who appeared to be
resisting. It appeared to him that the Grievor had control. He testified that he put
his gloves on while he continued to assess the situation. He eventually used both
of his hands to grab the Inmate’s right arm in the wrist area. He recalled there was
a lot of yelling and noise.
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[46] He recalled that CO Dykstra said “Stop Haist” or “Get off”. He did not recall
hearing the Grievor or the Inmate say anything. He remembered thinking “why
isn’t he getting off him?” He saw that the Grievor was contacting the Inmate’s
neck area. He told the Grievor “its over”. “You can get off”. After a while another
CO came in and helped the Grievor get off the Inmate.
[47] Under cross-examination, CO Creighton agreed that it took him approximately 15
seconds to get his gloves on (and therefore be in a position to assist) after he
arrived on scene. During that 15 seconds the Grievor was struggling to control the
Inmate. However, he believed he was watching the Grievor and the Inmate during
this time and thought the Grievor was in control. He also agreed that it took him a
substantial amount of time, perhaps ten seconds after he had put on his gloves, to
gain control of the Inmate’s left arm.
[48] Prior to the Grievor disengaging the first time, CO Creighton saw the Grievor make
a “shoving motion” with his fist towards the Inmate’s face. CO Creighton saw he
had a closed fist but could not recall which hand he was using. He thought that
occurred right before he was assisted off the Inmate. Although CO Creighton
believed he had seen the Grievor strike the Inmate in the face because he was
looking in that direction, he had “no idea if it was forceful enough to cause an
injury”.
[49] No other CO, other than Dykstra and Creighton, reported that they saw the Grievor
punch the Inmate although during the first set of punches there were no other COs
immediately present. In his evidence, the Grievor denied punching the Inmate at
any time. In the allegation meeting he was not so clear. He was asked how many
closed-fist strikes he made against Inmate T. He responded, according to the
notes, “On report I didn’t put any-I didn’t recall giving them. The detective actually
told me I gave two, I didn’t recall [,] I was trying to restrain.” This is not to say that
whatever the detective thought has any evidentiary value, but the Grievor’s
reaction at that time to the investigator, unlike before me, was to say that he did
not remember throwing punches, not to deny that he had thrown punches. The
Grievor acknowledged that it is prohibited to throw punches. He states that he did
not try to injure the Inmate and did not assault him. He claimed that he could not
have punched Inmate T because both of his hands were occupied holding his
wrists. Under cross-examination, the Grievor stated “At no point was a punch
thrown”.
[50] I disagree with the Grievor. After careful review of the video, I am satisfied that
shortly after CO Dykstra got in close on the Grievor’s right side, the Inmate pulled
his left wrist out of the Grievor’s right-handed grasp which contradicts the Grievor’s
evidence that he could not have punched because his hands were occupied. On
careful review of the video, the Grievor can be seen throwing three punches at the
Inmate. As they occur, CO Dykstra is directly above the path of the Grievor’s
punch. CO Creighton was at this time on his knees which were directly adjacent to
the Grievor. His head was over the top of the Grievor’s head, and he was looking
down. His face was not more than two feet from the Inmate’s face which cannot
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be seen in the video. I am satisfied both COs had a view of the Grievor’s
punches, although CO Dykstra may not have, as she testified, seen the punch
strike the Inmate’s face.
[51] During this time COs were yelling at the Grievor to get off Inmate T. The Grievor
acknowledged in his evidence that at a certain point one or more COs told him to
get off the Inmate. It is clear he did not do so immediately after being told.
Eventually he got off the Inmate as seven more COs arrived on scene, one of
whom tapped the Grievor on the back and reached for his arm and assisted the
Grievor off the Inmate. That CO attempted to guide the Grievor away, but he
momentarily stood over Inmate T, glaring at him. At that time the last significant
event occurred when the Inmate kicked out at the Grievor. The Grievor was critical
of the newly arriving COs because they did not get control of the Inmate’s legs.
This is true, and the COs likely should have acted as the Grievor suggests,
although I do note that the Inmate’s legs were in a relaxed position until the
Grievor got off him. I also note that the Grievor testified that “to my surprise, no
one had control of his legs”. That surprise seems entirely an after the fact emotion
and not something he felt at the time. The look on his face immediately after he
disengaged suggests total focus on the Inmate.
[52] After the Grievor was standing over the Inmate for a moment he began to back off.
Before he could get fully away, the Inmate kicked out at the Grievor, hitting him in
the knee area. The Grievor’s evidence was that there were two to three kicks to
his knees which he said “hurt”. I have carefully reviewed the videos and can see
only one or two kick outs which, in my view, at most, strike a glancing blow with
little force. I seriously doubt that they hurt the Grievor. Had he moved away he
had room to leave and, even if a CO was blocking his way, they surely would have
stepped aside to make room.
[53] The Grievor went back down on top of the Inmate despite the efforts of three or
four COs attempting to stop him from doing so (one tried to grab him from behind
and others tried to hold his arms). The Grievor’s evidence was that he wanted to
regain control of the Inmate and that he could not step away because his way out
was blocked by other COs and the table and chair. I am not convinced by the
Grievor’s explanation. I find, based on the totality of the evidence before me, that
the Grievor was angry at the fact that the Inmate had kicked out at him (and
everything that had happened before) and got back on top of him and threw a
punch at him to punish him.
[54] According to CO Dykstra, the Grievor then came back down on the inmate
“coming straight down for the inmate’s neck”. He had a “grip on the inmate’s neck,
applying pressure”. After a few seconds, the Grievor was pulled off the Inmate, the
Inmate ceased resisting and he was handcuffed and escorted away. CO Dykstra
then wrote her occurrence report. As the Grievor said, I have little doubt that CO
Dykstra genuinely believed that the Grievor grabbed Inmate T in the neck area.
However, I see no evidence of that on careful review of the video. Moreover, the
Grievor’s right hand/arm is largely visible throughout. It may be that the Grievor
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grabbed Inmate T in the neck area prior to his first disengagement, but I find that it
has not been proven in their second engagement.
[55] Importantly, as noted, I have carefully reviewed the video and in my view, it is more
likely than not that the Grievor threw another punch at the Inmate after he re-
engaged. After he did so, other COs forcefully pulled the Grievor off the Inmate.
The Grievor then walked away from the scene and the Inmate was escorted away
shortly thereafter. The Grievor went to receive medical assistance and pictures of
his injuries were taken. He had abrasions on the top of his head (where he had
been punched) and bruising on his arm. He also had pictures taken of his neck
and chest. No pictures were taken of his knee or leg. Bandages were applied to
injured spots.
[56] The Grievor denies that he punched the Inmate or grabbed him in the neck area at
any time. He agrees that the COs that said he did punch the Inmate believed what
they think they saw.
[57] Almost immediately following the incident the Grievor wrote his occurrence report.
The Grievor’s first occurrence report stated (with paragraph breaks added for ease
of reading):
On Saturday May 4th, 2019, approximately 0700 hours at Niagara detention
centre during morning briefing I was assigned as Max I/C. During my 0900
hours tour inmate T became very vocal about how the day was going to be
while being very disrespectful towards myself with aggressive behavior and
being verbally assaultive. I advised if he was going to continue this way that
he was going to be relocated zed wing. Do you do as aggression I sent him
in his cell I kept him in his cell for the morning.
Later today approximately 1440 hours during my tour in one wing inmate T
was in the day room because he appeared to have calmed down and
shouted something at me. Due to the amount of noise in the day room I was
unable to hear him therefore I move in closer to have a conversation. In note
T continued to mumble and speaking very quietly now and again due to the
volume of the day room I was unable to hear him and I moved in closer at
this point he said want to go to the hospital and gave me a strike to my upper
chest.
In this moment inmate T was assaultive and I immediately began fearing for
my life. Inmate T continued to be assaultive and gave me several close
handed strikes did to the head. I then closed the gap between us and picked
him up off the table as that was his position and we keep became assaulted.
Anne put him against a cell door to gain positional advantage by moving from
his lower body to his upper and perform a takedown to gain further potential
advantage. After the takedown I transitioned from side control to top mount.
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At this time I see clamped his arm against the Florida stop his assaultive
behavior. He began attempting to headbutt me at this time I transferred my
body weight onto his head to stop the assaultive behavior. Moments later
multiple staffed arrived on the unit and began to gain control Co Dykstra and
Creighton took control of inmate T’s arms at this time I disengaged and as I
was getting off inmate T remained assaultive and kicked me in the knees
multiple times period at this time I knew he was not compliant and staff did
not have yet have control, therefore I resumed my positional advantage and
got back on top and placed my hands at his upper chest slash shoulder area
to prevent him from headbutting again moments later staff gain control of his
legs an I disengage and left the unit I went to medical to be assessed and
was treated with saline solution and badges for my left elbow and neck I also
have bruises on my left forearm and right upper chest I then was relieved of
duties to write this report.
[58] Management reviewed the video of the incident. It appeared to them that the
Grievor had thrown punches during the incident. Accordingly, on May 4, 2019, the
Grievor was told to complete an addendum to his use of force report which
included all open and closed-hand techniques he employed during the incident.
He did so. The relevant part is as follows:
This addendum is being written on May 8th 2019 falling my original report
that was submitted on May 4th 2019. The reason for this addendum is that
my original report was written under duress as I had just been assaulted. I
was worried about my injuries and other staff members. Due to the
adrenaline, i was not able to recall everything directly following my assault. I
have had a few days to process my thoughts and care for my injuries and
now have a clear mind on what took place on may 4th 2019 approximately
1446 hours.
On Saturday morning 4th 2019 approximately 0700 hours at the Niagara
detention centre during morning muster I was assigned as the Max in charge
officer. Approximately 0900 hours during my tour to unlock the units for the
morning, i was i assigned as one wing inmate, T, became very vocal about
staff getting another inmate off the unit because he was sick and tired of
listening to him all night and not getting any sleep. He told me if I didn't do
anything about it that he would. I responded to inmate T but I advising him
that there is no place to put the inmate he wanted off the unit at that time and
that Sergeant lubos was looking for somewhere else to place him. Inmate T
did not like the response and continued to be very verbally aggressive and
disrespectful towards myself. Due to his hostile behavior I decided to keep
him in his cell for the morning.
In mid T was unlocked after lunch because it appeared that he was no longer
hostile. Approximately 1440 hours during my tour of the area I entered one
wing and clocked. As I was leaving the unit, inmate T shouted something at
me. Due to the level of noise in the day room and that he was sitting on a
table on the far side of the day room underneath the TV, I was unable to hear
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what was shouted, but inmate T appeared to be frustrated. Moments later I
approached him to the front so we could have a face to face conversation
and I asked him in a calm manner what he had shouted at me. He then
became very quiet and started mumble his words. I was still unable to hear
him; Therefore i approached him even closer to make out what he was trying
to tell me. The reason I wanted to know what he was saying was due to his
behavior early in the day I wanted to be sure his safety along with the safety
of other inmates was not in any danger. During this brief conversation I
remain calm and was simply trying to figure if there is an issue I had to
resolve. I asked him if there was an issue and he replied to me by asking me
do want to go to the hospital? Before I could respond to this threat, inmate T
had already struck me in the upper chest area. At this moment I had two
thoughts. Firstly i immediately get began fearing for my life due to the fact
that i was just assaulted and that it was the only staff in the unit at this time
and didn't know how many inmates would partake in the assault or if inmate
T had any weapons on his person during this assault. Secondly inmate T
lured me into his striking rage by speaking quietly and allowed day room, as
a result I entered fight or flight mode.
At this point I rushed him and close the Glock gap between inmate T and
myself. I wrap my arm rounds are my arms around the lower half of his body
and pulled on towards myself to get him off the table during which he struck
me with several lower close handed strikes to the head. Continued to fear for
my life. After I felt him leave the table I turned and pinned him against the cell
door to gain positional advantage. I then adjusted my arms from his lower
body to his upper body and performed a leg sweep takedown to get him to
the ground so I could safely restrain and gain compliance to inmate tease
assaultive behavior. Upon getting to the ground, I landed on top of him inside
control which which was my body lying along inmate Tees right side while my
chest was on top of his. I then transitioned to top mount which was bringing
my right leg over his body and sitting on him all my body weight kept him
pinned to the ground to gain positional advantage and stop the threaten my
life. Inmate T continued to assault me by attempting to hit me with more
clothes handed strikes from his back. I then grabbed and C clamp both wrists
and pin them to the floor above his head word would have no strength resist.
Moments later inmate T started trying to headbutt me as i, as a result i
transferred my weight forward causing his head to be pinned on the floor to
prevent his headbutting attacks. This is when inmate T said to me i'm going
to ******* kill you. This is when i knew the threat of my life was real and i felt
very scared in this moment.
Soon after multiple staff arrived on the unit and began attempting to gain
control on inmate tease assaultive behavior. CEOs dykstra and Creighton
attempted to take control of inmate tease arms, as a result I began to
disengage as I went to get up in mighty he continued to attack me by kicking
me multiple times in the knees. In this moment, firstly I thought he's not under
control he's going to get up and continue his act attack on my life. Secondly I
got tunnel vision with a surge of adrenaline because of the traumatic
experience had just endured moments before when he struck me several
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times in the head. When inmate T continued his attack after I thought he was
under control, I immediately began fearing for my life once again and resume
my body my position on top of top mount while placing my hands on his
upper chest at shoulder height to pin his upper body from getting up and
headbutting me. Soon after staff appeared to have gained control of inmate
T, and as a result I disengaged and left the unit. I then went to the medical
unit to be assessed for my injuries, I was treated with saline solution and
bandages for my neck and left elbow for the cuts I received. I also have
bruising on my left forearm and right shoulder period i was relieved of my
duties for the remainder my ships to write my original report which is
submitted on may 4th 2019.
[59] In examination-in-chief, the Grievor was asked about his statement in the last
sentence of paragraph 3 to the addendum where he said that he was in “fight or
flight mode”. The Grievor responded that it was “bad language on” his part. He
explained that he was not in a proper state of awareness after the Inmate struck
him on the head. Prior to testifying he had not raised this suggestion. I am
satisfied he was right the first time- he was in fight or flight mode and decided to
fight.
[60] Deputy superintendent Anthony Hiebert testified that the video concerned him
because it appeared to show the Grievor using closed-fist strikes which had also
been reported by CO Dykstra and CO Creighton. Not only are those not
permitted, but the Grievor did not, in his use of force report, disclose that he had
used them. He was also concerned that the Grievor re-engaged with the Inmate
and appeared to strike him in doing so and that he was forcibly removed by the
other COs. Further, the Grievor had, in a certain respect, caused the Inmate’s
assault by getting into his personal space. He thought the Grievor’s conduct might
be criminal and stated that in the management use of force review report which he
created. Deputy Hiebert then consulted with his superiors at the regional level.
The Grievor was suspended with pay pending investigation and was sent a letter
dated June 28, 2019, to set up an allegation meeting which read in relevant part as
follows:
The purpose of this meeting is up to allow you the opportunity to respond to
the following allegation:
1. On May 4th 2019 you demonstrated excessive use of force and
unprofessional behavior in contravention of the use of force policy and
the Ministry’s COCAP policy - during an incident in the Maximum area,
involving inmate T.
[61] The allegation meeting was held on July 4, 2019. There is no need to describe
what occurred at the meeting since I have already referred to the relevant parts of
it in my recitation of the facts.
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[62] On July 30, 2019, the Grievor’s employment was terminated at a meeting at which
he was provided a letter which states in relevant part:
…
Your response to this allegation was that you felt the force used was justified.
I must stress that I found, in your response to this allegation, you minimized
your actions and you demonstrated very little insight regarding this incident.
As such, you failed to take any responsibility for your behavior which is
intimidating and hostile in nature. Your choice not to utilize strategies
intended to control the situation resulted in an escalation of the incident.
After carefully reviewing all aspects of this occurrence, a review of your
personnel file, the results of the fact finding investigation, your response to
the above noted allegations, it is my conclusions that the allegation has been
substantiated. As noted above, I am very concerned by your responses to
the allegation and I do not believe you have shown appreciation of the
seriousness of the situation. I have concluded your actions are just cause for
discipline it is my decision to dismiss you from employment pursuant to
section 34 of the Public Service of Ontario Act, effective immediately.
[63] The Union then filed this grievance, and I was appointed to determine it.
Discussion
Credibility
[64] Overall, I find the Employer witnesses much more credible than the Grievor, the
only witness called by the Union. Through the above narrative, I have pointed out
instances where I found the Grievor’s version of events not credible. I also noted
that his version was on several important points contradicted by other COs,
particularly Dykstra and Creighton. Those CO witnesses had nothing to gain by
reporting the Grievor in the first place in their occurrence reports or by testifying
before me as they did. In fact, in this kind of workplace reporting or testifying
against a fellow CO, traditionally, could carry negative workplace consequences.
Vestiges of that tradition still remain. There was no suggestion that the COs have
any axe to grind with the Grievor and in fact they had only known him for a short
period of time. I find no basis on which I could conclude that the COs were not
truthful and it was not suggested that they were not.
[65] I also find that Deputy Superintendent Hiebert and Mr. Houston were truthful and
fair witnesses. They each were prepared to acknowledge facts not in their favour.
Mr. Houston, in particular, was a forthright witness who in my view fully understood
his duty to the GSB as an expert.
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[66] I am not satisfied that the Grievor was a credible witness. In my view, it is clear
that he tailored his evidence after having seen the videos as part of the arbitration
process. For example, his evidence about why he did not step away or disengage
on the two occasions when he had the opportunity to do so were likely heavily
influenced by what he saw on the video. I am satisfied that, despite what the
Grievor’s evidence was, there was ample occasion here for the Grievor to
disengage, use tactical communication and wait for help to arrive. The Grievor
has explanations for why that would not have been appropriate. He asserts that
he was too close to the cell door following the push to safely disengage. He also
asserts that there were inmates around whose response to what had happened
was unpredictable. These explanations appear to have been heavily influenced by
watching the video.
[67] I also reject the Grievor’s explanations. Dealing with the inmate issue first, I find
the Grievor’s alleged concerns about other inmates both invented after the fact
and misguided. Those concerns are misguided both because none of the other
inmates moved at all after the Grievor had been pushed and, most importantly, any
danger from other inmates was greatly magnified by the fact that the Grievor
decided to engage the Inmate despite the fact that the Inmate remained seated
and was not advancing. The real danger (or one of them) of the Grievor’s decision
to engage was that other inmates might decide to come to Inmate T’s assistance
and attack the Grievor. That was a far more likely prospect than they becoming
involved if the Grievor had disengaged. Moreover, the Grievor had plenty of room
around the cell door to safely disengage. I reiterate that after the push the Inmate
never left his seated position and no other inmate moved. While the Grievor had
the right to attempt to use force to restrain the Inmate, he exercised that right in a
fit of anger without considering his options.
[68] In addition, I find that the Grievor in his evidence repeatedly exaggerated the
threat posed by the Inmate. In examination- in-chief, the Grievor testified that the
Inmate knew his full address. However, in cross-examination, he acknowledged
this was not true and made false claims about how he had previously testified. He
also changed his assessment of the Grievor’s facial expression from “smart
allecky” or “frustrated” to “threatening”. He claimed, unconvincingly, that he did not
want to put “threatening” in his occurrence report because that was speculation
even though he was ready to speculate that the Inmate was frustrated.
[69] Finally, there were occasions when the Grievor failed to acknowledge the obvious
truth or failed to do so promptly. A critical example of this was when he was cross-
examined about his statement that Inmate T would be put in “2 Wing with the ‘big
boys”. There were two obvious things about that statement that the Grievor had a
great deal of difficulty acknowledging. The first was that the inmates in 2 wing, the
“big boys” as he called them, were more dangerous inmates, especially to Inmate
T who was in the maximum security unit because of his vulnerability. The second
thing the Grievor never really acknowledged was that his statement was a threat.
It was obviously a threat. He was telling Inmate T that if he did not behave, he
would be placed in a unit where he would be in danger. The most the Grievor
would acknowledge in the end that he could see how someone might see that as a
-20 -
threat but that was not his intent. What was left unsaid was what his intent was if
not to threaten, particularly given that he did not have the authority to make such a
move. It was obviously a threat and the Grievor’s failure to acknowledge that does
not support his credibility.
The Employer’s Use of Force Policy
[70] The Employer has policies regarding the use of force and appropriate interactions
with inmates that are at issue in this case. Mr. Hiebert, Mr. Houston and the
Grievor gave evidence about the use of force techniques that are approved by the
Employer.
Article 4.23.1 states that “hard physical techniques” like “takedowns” and
“strikes” may be used in appropriate circumstances. However, Mr. Hiebert’s
and Mr. Houston‘s evidence is that strikes are used as a stun technique, not
to deliver damage, and are only to be open handed, not a fist. The Grievor
agrees that closed fist strikes are prohibited.
Article 3.1.1 Whenever possible, and given all circumstances, staff should
attempt to resolve incidents using verbal intervention skills, such as diffusion
of hostility, as well as other peaceful resolution strategies (i.e. officer
presence or disengagement).
Article 3.1.4 of the policy states that no employee shall use force against an
inmate unless force is required in order to enforce discipline and maintain
order within the institution; defend the employee or another employee or
inmate from assault; control a rebellious for disturbed inmate; or conduct a
search.
Article 3.1.5: force must always be the action of last resort. The amount of
force used must only be that amount needed to control a situation. When
there is a decision to use force, it must be used in compliance with the law,
good judgment, and Ministry policy, procedures and training.
3.1.6 When an employee uses force against inmate, the amount of force use
shall be reasonable and not excessive, having regard to the nature of the
threat posed by the inmate and all other circumstances of the case.
3.1.7 Force is not intended to be, and must be never be used as a means of
punishment.
3.1.8 The carotid restraint technique must never be used.
3.1.9 Excessive Use of Force will not be tolerated. Employees found to have
applied force in excess of approved methods may be subject to criminal
charges and/or appropriate disciplinary penalties, up to and including
dismissal.
[71] The Policy also contains certain definitions, including the following:
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4.16 Use of Force: any application of physical force by an employee of the
Ministry against an inmate. No employee shall use force against an inmate
unless force is required in order to enforce discipline and maintain order
within the institution; defend the employee or another employee or inmate
from assault; control a rebellious or disturbed inmate; or conduct a search.
4.16.1 the amount of forced used shall be reasonable and not excessive
having regard to the nature of the threat posed by the inmate and all other
circumstances of the case.
[72] The Employer also relies on policies, including the COCAP policy, it has respecting
behaviour in the workplace and the treatment of others in that workplace. For
example, one policy states:
As employees we will:
a) Act in a respectful and inclusive manner towards every person (which
includes employees, clients, contractors and the public) with fairness,
respect, equity, courtesy and understanding…
Decision
The Allegations
[73] In order to demonstrate that the dismissal of the Grievor was for just cause, the
Employer must, at a minimum, prove one or more of the allegations made against
the Grievor. For ease of reference, I repeat the allegations:
1. On May 4th 2019 you demonstrated excessive use of force and
unprofessional behavior in contravention of the use of force policy and the
Ministry’s COCAP policy - during an incident in the Maximum area,
involving [Inmate T].
[74] Accordingly, in order to sustain the Grievor’s discharge, the Employer must, at a
minimum, prove that the Grievor used excessive force in his dealings with Inmate
T and/or that he engaged in unprofessional behaviour in contravention of the
Ministry’s COCAP policy and its use of force policy.
[75] Importantly, section 7(4) of the Crown Employees Collective Bargaining Act
provides:
(4) In substituting a penalty under subsection 48 (17) of the Labour Relations
Act, 1995, the Grievance Settlement Board shall not provide for the
employment of an employee in a position that involves direct responsibility for
or that provides an opportunity for contact with residents in a facility or with a
client if the Board has found that the employee,
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(a) has applied force to a resident in a facility or a client, except the
minimum force necessary for self-defence or the defence of another
person or necessary to restrain the resident or client
[76] In other words, if I find that the Grievor used force which was greater than the
“minimum force necessary for self-defence or … necessary to restrain the
[Inmate]”, I may not reinstate the Grievor to a CO position regardless of the
disposition of the grievance.
[77] Upon careful review of the video and the oral testimony given in this proceeding, I
am satisfied that the Grievor acted inappropriately on a number of occasions.
[78] First, he got far too close to the Inmate to speak with him and in doing so
instigated the Inmate’s predictable and assaultive reaction which led to the fight
which almost immediately followed. In doing so, he violated the COCAP’s policy
requirement that the Inmate be treated with dignity. At this point he also acted in
ways that were inconsistent with his training in more than one respect, which he
acknowledges.
[79] Second, although he claimed other reasons for getting so close to the Inmate, I am
satisfied that he “got in the Inmate’s face” in order to intimidate him. The Grievor
claimed in his occurrence reports that the Inmate was mumbling, and the dayroom
was loud so he moved closer to hear him. He claimed he wanted to hear what he
had to say to ensure that the Inmate was not making threats and everyone in the
institution was safe. In the allegation meeting the Grievor said something different.
He said that he initially got closer to the Inmate because he was mumbling and
could not hear him. It was suggested that Inmate T was trying to intimidate him,
and he was then asked why he got even closer especially since he was trained not
to invade personal space. The notes reflect that the Grievor responded that he got
closer to show the Inmate that he was not intimidating him. He said that he “would
have turned away I might as well turn in my keys and walk off the range. I would
have lost all credibility. I have to address the behaviour; that’s how I chose to.
Poor judgement. I shouldn’t have got that close”. He was asked if he was trying to
intimidate and responded that his intention was that the Inmate was “not going to
intimidate him”. In doing so, he violated the COCAP’s policy requirement that the
Inmate be treated with dignity.
[80] Third, I find that the Grievor intimidated the Grievor when he threatened to “put him
with the big boys” on a different wing of the institution. This was both dishonest
(since he did not have the authority to do it) and a threat and was contrary to
Employer policy.
[81] Fourth, I find that the Grievor used excessive force when he punched the Grievor
after he re-engaged with him. The Grievor acknowledged in his evidence that
closed-fist strikes were prohibited. However, despite that, it cannot be said that
closed-fist strikes will always constitute the use of excessive force. If, for example,
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a CO is literally fighting for his/her life, it may be necessary for the CO to use any
means available in their defence including the use of closed-fist strikes.
[82] Those were not the circumstances that the Grievor faced here. The Grievor had
stepped off the Inmate and two other COs were controlling the upper half of the
Inmate’s body. Many other COs were in the immediate area. The Grievor was
kicked by the Inmate and the Grievor decided to jump back on the Inmate. I do not
accept the Grievor’s explanation that he jumped back on to re-establish control.
My view of the situation, on watching the video repeatedly and carefully, is that the
Grievor jumped back on the Inmate and did nothing to re-establish control. In
particular, given that what was not in control were the Inmate’s legs, one might
have expected the Grievor to try to take control of the Inmate’s legs. Instead, he
landed at an angle at the Inmate’s upper body and in my view punched him in the
face while the Inmate was being held by other COs. I find that the Grievor was
angry about being kicked (to add to his understandable anger at being pushed,
punched and wrestled with) and his re-engaging with the Grievor and punching
him was a direct response to being kicked at and born out of that anger.
[83] Fifth, while there is no direct evidence that the Grievor landed the punches he
threw at the Grievor during their first engagement, throwing the punches was itself
an act of misconduct. The Grievor lost control of the Inmate’s arm as he was in a
top mount position and then threw, by my count, three closed-fist strikes at him. At
the time there were two other COs in close proximity and many more on the way
(as the Grievor undoubtedly knew). He was wrestling with Inmate T but was in
little danger. Throwing closed-fist strikes was not justified as either appropriate
self defence or as a measure to take control of a physically rebellious inmate.
[84] There is no doubt that the Grievor committed disciplinable offences in the way he
dealt with Inmate T. The Union acknowledges as much in its closing argument.
However, it asserts that any discipline should be minimal under the circumstances;
albeit that argument was largely made in the context of no finding that the Grievor
punched Inmate T.
[85] The real question before me is to identify whether discharge constitutes the
appropriate level of discipline in the circumstances. In my view, punching a mostly
defenceless inmate (defenseless because his arms were being held by other COs)
is serious misconduct.
[86] There are few mitigating factors which would justify reducing the penalty other than
that he has no disciplinary record. The Grievor, with approximately three years of
employment with the Ministry, is a short service employee and he was not
permanent; he was on a contract that was to expire later in 2019.
[87] While the Union points out that he took some responsibility for several of his
actions, he did not acknowledge or take responsibility for that fact that he punched
the Inmate or for the fact that he got in the Inmate’s face to intimidate him. These
facts undermine any claim he may have to leniency. The essence of the
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acknowledgement of wrongdoing that demonstrates the possibility (or likelihood) of
future good behaviour is truthfulness. It is not enough to accept responsibility for
obvious wrongdoing or breach of procedures as the Grievor has done. One must
also be forthright about the most serious allegations in order to demonstrate real
rehabilitative potential. That has not occurred here.
[88] As repeatedly noted, I find that the Grievor was dishonest on several occasions in
his occurrence report and in his evidence before me. This does not give me
confidence that if reinstated to employment, he would act properly. The Union
argues that the Grievor’s conduct was understandable given that, in his mind. the
Inmate had made an indirect threat to his family. I have already expressed
concern about the Grievor’s evidence on this point. He clearly exaggerated what
had happened and this was not raised in his occurrence report written shortly after
the incident. If it was as serious as the Grievor says it was, one would have
thought that he would have raised it right away.
[89] Finally, I take little from the Union’s argument that the Grievor was new to the
institution. Little about what occurred in this incident was institution specific. In no
institution is it acceptable for a CO to intimidate or punch an Inmate (except in the
rare circumstances described above).
[90] I am satisfied that the Grievor’s conduct is best viewed as stemming almost
entirely from his emotional reaction to both what the Inmate was telling him and
the inmate pushing him. From the start, the Grievor’s dealings with the inmate
were marked by an absence of compliance with proper defensive techniques and
mindfulness of his training. The Grievor lost his composure after the Inmate said
something to him (which he did not hear) which caused him to move too close to
the Inmate and never really regained it until after he was forcefully removed from
contact with the Inmate by fellow COs.
[91] The significant problem with the Grievor’s emotion-based choices is that it put him
in danger. It also put the COs who had to come to his assistance in danger.
Nothing about his evidence before me suggests that a similar emotional response
could not happen again.
[92] For all of the foregoing reasons, I find that the Employer had just cause to
discharge the Grievor from his employment and that there are insufficient
mitigating factors to reduce that penalty and give him a second chance. The
grievance is accordingly dismissed.
Dated at Toronto, Ontario this 25th day of October 2023.
“Brian McLean”
Brian McLean, Arbitrator