HomeMy WebLinkAbout1978-0212.Ralph.79-07-04Between:
Before:
IN THE MATTER OF AN ARBITRATION 1
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before~
THE GRIEVANCE SETTLEMENT BOARD
Mr. Randolph Ralph
and
The Crown in Right of Ontario
Ministry of Correctional Services
Professor K. 2. Swan - Vice-Chairman
Mrs. Mary Gibb " - Member
Mr. Harry Simon. - Member
. A
For the Grievor:
Mr. Roger G. Oatley, Barrister & Solicitor
1 Berczy Street
P.O. Box 760
Barrie:,~Dntaris L4M JYS
For the Employer:
Mr. J. F. Benedict
Manager, Compensation & Staff Relations - Human Resources Management
Ministry of Correctional Services
2001 Eglinton Ave. East
Scarborough, Ontario
Hearings:
May 4, 14, 23
June 7, 21, lC75
Suite 2100
180 Dundas Street West
Toronto. Ontaric
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This case, which required protracted hearings and extensive
evidence, raises a number of critical issues, both procedural and
substantive, for the first time. The grievance from which it
arises wasp filed by Mr. Randolph Ralph, a Correctional Officer 2
employed as a general duty officer at the Barrie Jail, to contest
his suspension for 20 working days because of an incident on the
night of October 4/5, 1978. The Employer characterized his con-
duct on that occasion, in the letter imposing the discipline
(Exhibit Z), as follows:
You indiscriminately used a fire hose cm inmates
on October 5, 1978, and failed to exercise your
responsibilities as a correctional officer to ensure
that the~inmates were provided with dry clothing and
bedding.
This case, we were informed, has attracted considerable
public attention, and we were confronted at the opening of the
hearing with a request for a ruling on whether the proceedings of
this Board are open to the public and to the press. We heard
argument from the parties, and subsequently ruled that the hearing
would be completely open, subject to the right of either party to
request that the hearing proceed in camera in respect of any specific
matter for good and sufficient reason. We promised to give written '
reasons for that decision, and those reasons follow:
Under the c; it is not
clear whether the statutory POWERS Procedure Act, S.O. 1971, c.47
applies to proceedings before this Board. These proceedings are'
referred to as "arbitration" in S. 18(l), and we are given, by
5. ia(z), the same powers as a board of arbitration estabiished to
resolve negotiating disputes under s. 10. The statutory POWWS PIE-
edure~Act is expressly excluded for “a~-bitrations under this Act" by
S. U(Q, but that provision, in context, is closely related to the
interest arbitration provisions in'ss. 10 and U.
If the,statutory powers ~mcedure Act does apply, no difficulty
arises, since S. Y of that Act provides:
Y.-(l) A hearing shall be open to the public except
where the tribunal is of the opinion that,
(a) matters involving public security may be disclosed
or
(b) intimate financial or personal matters or other
matters nny be disclosed at the hearing of such
a nature, having regard to the circumstances,
that the desirability of avoiding disclosure
thereof in the interests of any person affected
.PF in the public interest outweighs the desir-
ability of adhering to the principle that hearings
be open to the pubiic,
in which case the tribunal my hold the hearing concerning
any such matters in camera.
If that Act does riot apply, we are nevertheless of the view
that our proceedings ought to be guided by the spirit of that
provision, which appears to us apt to satisfy the rules of
natural justice. All of the jurisprudence concerning arbitrations and
other proceedings beyond the scope of the statutory lowers i?rroced~~
Act is to the same effect: see Bell v. Ontkio .mmn Rights Comis- -
sion, t1971) S.C.R. 756, 18 D.L.R. (3d) 1 (S.C.C.); Re Millward and
.&blic Service Commission (19741, 49 D.L.R. (3d) 295; Re Torbnto Star
Limited and Toronto Newspaper Guild (1976). 1.4 O.R. (2dl 278.
The ~eii case, a particularly high authority, sets outthe principle
that
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i
a statutory tribunal should be conducted in
public unless there be good reason to hold
them in camera.
Apart from precedent, however, we think that in principle
a heavy onus lies on any party who wishes to close a hearing of
a statutory body like this Board. It is the hallmark of proced-
ural fairness that justic'e manifestly be seen to be done. That
can only occur if the public and the press have full access to the
proceedings; the best safeguard against the arbitrary use of power
or merely careless injustice is the full light of public scrutiny.
Public hearings can have their costs, of course, but those costs
must be particularly heavy to overweigh the primary public interest
in openness.
The Employer advanced three reasons why a public hearing
would be undesirable. The first argument relied upon a decision of
the Public Service Grievance Board, brewer, 850/75 and me Air Canada
and International Association of Machinists and Aerospace Worke~ers.
Lodge 1571 (19781, 18 L.A.C. (2d) 113 (Frumkin). Neither of these
cases, in our view, can be regarded as good authority since me Toronto
star, supra. --
The second argument related to the nature of the Ministry and
the security of the institution, given that evidence would be adduced
relating to fire and security procedures which might be of use to
persons with criminal intent. Third, the Employer asserted a right
to privacy on behalf of former inmates who would be.called to testify,
some of whom have served their sentences and have now returned to
society, where further publicity of their incarceration can ~nl:~
harm them. !n our view, sound though these arguments are. xey ctnnc:
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overweigh the public interest in an open hearing. We did offer,
however, to consider an application from either party that certain
evidence be received k camera; that offer was never taken up.
We also asked members of the press .not to report the names of
inmates who might testify, and we heard no complaint that our
request was not honoured. Thus the important public policy issues
in the open hearing question have, we think,'been accormnodated.
A second procedural issue concerned a complaint by Mr. Oatley
that, although correctional officers ,called Bs witnesses for the
Employer were informed by the Ministry that they were on duty <.
during the hearings and would be paid their regular salarie$those
called by the grievor had been informed that, for the time they
spent waiting to give testimony under subpoena, they would be
treated as on leave without pay. Mr. Oatley complained that this
distinction might well act to intimidate individual witnesses,
siiice it meant that they would suffer a financial loss by reason
+e<
of their appearance as witnesses for the grievor. Mr. Oatley
characterized this treatment as tending to undermine the process
of the Board, as contrary to the Collective Agreement, and as
contrary to the crown employees Collective Bargaining Act.
The Collective Agreement (1978 Working Conditions Agreement)
provides~, in Article 28.2:
Leave-of-absence with no Loss of pay and with
no Loss of credits shall be granted to a member
of the Union who participates in negotiations, mediation
or arbitration, provided that not more than five (5)
employees at any one time shall be permitted such Leave
for any one set of negotiations. Provided bowever, tk
L'nion may at its discretion require u-3 to firre (5)
additional aembers to ~artic:;ate i;? .2eqctiatkxs,
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mediation or arbitration who shall be granted leaves-
of-absence without pay but with no Loss of credits.
The Act provides, in section 35 (1):
The employer Or any person acting on behalf of
the employer shall not,
(a) refuse to employ or continue to employ a
person; . .
(b) threaten dismissal or otherwise threaten a
person;
(c) discriminate against a person in regard to
employment or a term or condition of employ-
ment; or
(d) intimidate or coerce 01 impose a pecuniary or
other penalty on a person;
because of a belief that he may testify in a proceeding
under this Act oz because he has made or is about to
make a disclosure that may be required of him in a pro-
ceeding under this Act or because he has made an applica-
tion or filed a complaint under this Act of because he
has participated or is about to participate in a proceed-
ing under this Act.
We had an opportunity to consider Mr. Oatley's application, which
was for an order that the practice cease, for some time during an
adjournment in the hearing. It is ourview, upon careful reflection,
that this Board has no inherent power to control its own proceedings
beyond those expressly set out in the statute. It appeared to us
that only three avenues of relief were open to the grievor or to
individual witnesses:
1. A grievance alleging a breach of Article 28.2, which
would, failing resolution, ultimately come to this
Board.
2. A proceeding before the Courts alleging that the
Employer is in contempt of the process of this
Board by its action; this proceeding could be
commenced bv wav of a stated case from the Board
under s. 13 of the statutory ?OWWS kccedure AC*,
if that Act apolies, or uncer general principles
of law if it does not.
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3. An application to the Ontario Public Service Labour
Relations Tribunal under section 30 of the crown
Employees Collective Bargaining Act allegingreach
of sectlon 35.
We indicated our willingness to state a case in the event that either
option 2. or 3. were pursued, but we otherwise were of the view that
we had no jurisdiction to determine this issue or to act on the
complaint, and we declined to do so.
We turn finally to the merits of the case; we shall begin with
a review of thecevidence and our findings of fact before we state and
deal with the arguments of the parties. On the night of October 4/5,
1978, the night shift in the Barrie Jail consisted of four correctional
officers, the usual complement on that shift. The Shift Supervisor
was Mr. R. H. McNeil, a management employee with nearly twenty years
experience. Other members of the shift were E. J. Binns, a CO1 with
about one year's full time experience and one year prior to that as
a casual employee; A. J. Robbins, a CO2 with five years' experience,
and the grievor, R. W. Ralph, a CO2 with nine years' experience. The
shift came in to work at 2250, just after the inmates had been locked
in their cells forthe night. There were 62 inmates in Barrie Jail
that night, constituting a situat,ion of serious overcrowding, and
that circumstance coloured the events which followed.
At 2335 the smoke alarm in Number 3 Corridor sounded. That
Corridor leads on to six cells, each roughly large enough in floor
area for a single bed; each cell was occupied by one inmate. Four
more inmates, because of the overcrowded situation in the Jail, were
bedded down on mattresses in the small corridor area itself. ?iccord-
ing to the inmates, the smoke alarm was deliberately set off by
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blowing cigarette smoke into it, a feat easily accomplished by stand-
ing on a window sill. 'According to certain of the inmates, the
person who set off the alarm did so under threat from other inmates,
particularly those in the cells. No one actually admitted to having
set off this first alarm'
Within moments, Mr. McNeil, Mr. Robbins and Mr. Ralph investi-
gated the alarm from the locked grill door.which serves as an entrance
to the corridor. They saw no smoke nor any evidence of a fire and
concluded that the inmates had set off the alarm deliberately. This,
we were told, was something of a favourite sport in the Jail. At this
point Mr. McNeil delivered a lecture to the inmates to the effect that
::.
the alarms were not to be played with. There is evidence from two
inmates that he also threatened to use the fire hose onthem if .there
were a repetition of the false alarm. All of the correctional officers
present deny this threat was ever made, and the other four inmates
who testified did not recall it, even when asked directly if they had
heard such a threat. We leave this conflict in the evidence for the
moment with the observation that, if such a threat had been made, it
would al,ter dramatically the character of what followed.
Parenthetically, we note that there was ample evidence that the
sounding of the alarm after the inmates were in bed caused a consider-
able cornnotion in all parts of the Jail. The descriptions vary consider-
ably, but nearly all of the'witnesses commented on the commotion.
Some of them, correctional officers and inmates alike, testified that
they found this outburst a frightening experience.
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~A short time later, the smoke alarm in Number 3 Corridor sounded
again; the log books give the~time as 2359. On this occasion, one
inmate admits to setting off the detector by blowing cigarette, smoke
into it, responding to threats from other inmates. At this time
Barrie Police officers had just brought three new admissions to the
Jail, and Mr. Robbins had sent them to the showers. When the alarm
sounded, he gave them underwear and towels and locked them in the
nearest corridor, and went quickly,.up to Number 3 Corridor. In the
meantime, Mr. McNeil and Mr. Ralph had already reached the area.
Mr. McNeil recalls saying "God, there must be a fire in there",
and ordering Mr. Ralph to get out the fire hose from its cabinet~on
the wall a few feet from the corridor entrance. Mr. Ralph does not
recall the precise words used by Mr. McNeil, but does agree that he
was instructed to get the hose and that he did so. Mr. Robbins
arrived just as Mr. Ralph was.entering the corridor with the hose, and
was ordered by Mr. McNeil to turn on the water. He complied, and after
a few moments responded to a further order to turn off the water. Mr.
Ralph then withdrew from the corridor area and the main grill was
once again locked.
As to this bare factual framework, there is no disagreement.
There are, however, two specific areas in respect of which the
evidence sharply diverges. The first relates to the necessity to use
the fire hose at all, the second to the way in which Mr. Ralph used
the hose while he was in the corridor. Both of these areas are
critical to a characterization of the conduct of the correctional
officers on this occasion.
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The correctional officers involved all testified that they
feared that an actual fire had start&in Number 3 Corridor, since
they saw smoke in the corridor through the main grill. The extent of
that smoke is variously described. Mr. McNeil describes it in his
original written report as "smoke". In a rather unusual second
report made the same night, he calls it a "considerable amount of
smoke". In a statement to a Ministry investigator on October 10 he
called it "slight trace of smoke close to the ceiling". In direct
evidence, he referred to "quite a bit of smoke"; on crgss-examination
he described it as a "blue haze" near the back of the corridor. Mr.
Robbins refers to "a considerable amount of smoke" in his report and
repeats that expression on examination. Later he says it was a
"sort of grey mist" around the grill, but he describes it as actually
flowing out of the grill. Finally, Mr. Ralph's written report describes
a "considerable amount of smoke", whereas he entered the words "a light
smoke haze" in the Upper Log Book (Exhibit 10). In evidence before us,
he describes it twice as "more than cigarette smoke".
The inmates, who testified that the alarm had been set off by
cigarette smoke, all denied that there was a great deal of smoke, or
any smoke other than from cigarettes, in the corridor. The one exception
was an inmate who testified that during the entire material period it
was "kind of smoky"~from inmates smoking cigarettes. All of the inmates
denied that there had been any fire, or any artificial means employed
to make smoke, other than cigarettes.
There was some evidence from the cqrrectional officers that burned
paper was found on the floor of the corridor the next day. ?!r. Y?CbbiSS
saw it, as did i4r. McNeil, but neither +lr, Ralph nor Yr. Brzdiey, :+ho
assisted in opening the cells the next morning and otherwise
gave strong support to the grievor, saw this material. It had
clearly disappeared by the time Mr. .Papp, a CO4 on duty the next
day, arrived to assess the situation near the beginning of the day
shift. There was also 'evidence that the smoke alarm ~could not be
reset for some hours after the incident. Mr. Oatley suggests this
was due to persisting smoke; Mr. Benedict attributes it to water
splashed up to the ceiling. Both explanations are entirely specula-
tive, and we do not consider that they add anything to the evidentiary
basis for our decision.
We have weighed all of this evidence carefully, and we regret
that we must conclude that there was no afire in Number 3 corridor,
nor any~'source of'smoke except cigarettes. We simply do not believe
the evidence to the effect that burned material was found in the
corridor, and we reject as well the testimony of smoke in any quantity.
That is not to say that there was no smoke; the inmates testified that
a number of them were smoking, and that it took 10 - 15 seconds of
blowing smoke at the alarm to set it off. The corridor was lit '..~~ '
only by a,night light at the far end, and a small indicator light
appears on the alarm when it is set off. Thus any smoke from cigar-
ettes would be back-lit, and might well appear more readily than in
better light, but we are unable to conclude that the situation would
appear serious to the average observer.
Moreover, the conduct of the correctional officers following
the use of the hose indicates that, at least by that stage, they did
not think there had been a fire. Only visual checks were made from the
grill, no evidence was offered of any special fire watch, and the in-
mates were not enlisted to search out the source of the smoke as would
have been reasonable if circumstances of potential danger to them
were actually present. Indeed, the lights in the corridor were never
turned on to permit a full inspection even frcm the grill.
We now turn to the evidence of the circumstances surrounding
the incident, to see whether the context of the situation adds any :
colour to the event itself. We have already observed that there were
only four correctional officers on duty, and some 62 inmates in
custody. The Barrie Jail is well over 100 years old, and is
built of masonry construction, but the walls are covered with
many layers of paint which could burn fiercely if ignited. The
walls in Number 3 corridor are covered with a fire retardant
paint, but there is doubt whether any of the officers involved
knew that fact. There are also bedding, clothing and personal
effects which could contribute to a conflagration once it began.
At the back of the minds of all correctional officers., of
course, is the recent tragic jail fire in Stratford, which claimed
the lives of inmates. A number of witnesses alluded to this event, '
and Mr. McNeil in particular said that the idea of a fire in the
jail frightened him badly. Against this general background we
have a situation of overcrowding in an ancient inadequate jail
where there are literally no diversions for the inmates beyond
card games and short walks in the exercise yard. The evidence
of dissension and violence among the inmates, low morale among the
staff and a general atmosphere of tension and bitterness in the
Barrie Jail went virtually unchallenged by the Ministry. As we .'.
said on a number of occasions during the hearing, the present
proceedings were not a public inquiry into the Jail, and it is no
part of our function to assess blame for this situation or to make
recommendations for its resolution. But an important part of Mr.
Ralph's defence is to the effect that the conditions in the jail
operated to produce stronger reactions among inmates and staff
alike, and that the events of the night of October l/5 have to
be seen in that context.
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.We are prepared to find that unusual tension and low staff
morale, plus a fear of fire and of the inmates themcclves, could have
contributed to an error in judgment; we accept the Ministry's argument
however, that if the present incident was an attempt at unauthor-
ized punishment, harassment or cruelty, the surrounding circumstances
would rarely be sufficient to excuse such conduct. It is unnecessary
to cite statutory authority or precedent to find that the Ministry.
and its officers have a duty to ensure the safe custody of those
connnitted lawfully to Barrie Jail and that, although overcrowding
and poor morale could make the performance of this duty much more
difficult to perform, it could not excuse deliberate acts designed
to cause discomfort and even danger to health to inmates. Even the
provocation of the deliberate false alarms would not justify such :~
deliberate conduct. There are procedures available for punishing
inmates who engage in improper activity, and no ad hoc deliberate --
punishment can be tolerated. The question then becomes is whether the
decision to use the fire hose was a deliberate act of cruelty or a
serious error in judgment. At the same time, it is important to note
that the decision was Mr. McNeil's, and not the grievor's. Thus the
grievor's participation in the incident must be measured subjectively
against his likely perception of what was happening.
If he heard Mr. McNeil threaten the use of the hose forfurther
false alarms, the character of Mr. Ralph's participation changes from
carrying out a lawful order related to a fire (even though that order
may have been based on an error of judgment) to willing participation
in a clearly unlawful act. Mr. Catley advanced obedience to orders
as a defence generally to charges 0 f involvement in imorcoer ccnc2c:.
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but we are not prepared to accept that proposition. The so-called
"Nuremburg defence" has never been a part of the general law of this
country, and we do not think that it has any place in arbitral
jurisprudence. If obedience to, an order would involve an employee
in illegality or wrongdoing, not only is there sound reason.to
refuse to carry out the order,~'there is a positive duty to do-so.
We consider that this is the obvious converse of the exceptions to
the "obey and grieve later rule" which makes illegality of an order
an absolute defence to charges of insubordination.
On the other hand, there are important reasons for quick
obedience to orders in a correctional institution, especially when
they are related to fires. We heard sufficient evidence to convince
us that a substantial proportion of officers at the Barrie Jail have
.little idea about the appropriate response to a fire. The difficult
trade-off between Jail security and the safety of officers exposed
to a large and unruly inmate population, and fire security and the
safety of inmates means that careful training and regular practice
is essential both to: the efficiency in evacuatl'on and the confidence
of the officers.. In the absence of that confidence, there is a certain
virtue in ready obedience to orders in a possible emergency which we
cannot ignore. The Ministry advanced evidence.about the Standing
Orders related to fires, and called a supervisor who, himself a volun-
teer fireman, spoke knowledgably about fire control and what ought
to be done. He was undoubtedly correct in his assertion that evacu-
ation was the appropriate step in these circumstances, but there is
evidence to make it appear very doubtful that any other officer in I
the Jail would have been nearly so prepared to deal with a fire
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emergency. Moreover, a fire hose had been used in the case of a _
minor fire in a corridor during August, and no disciplinary action. .~
had been taken on that occasion. It would not have been obvious
that the hose should not have been used this time as well.
Thus Mr. Ralph's culpability in going into the corridor with
the hose depends on whether he heard the threat to use the hose as
punishment.and became a willing accomplice, or did not hear it and
merely followed an apparently plausible, if misguided, direction.
On the evidence before us, we are unable to conclude that this -
threat was ever issued, or if it was, that Mr. Ralph ever heard it.
Only two inmates testified to the threat, while the other four who
gave testimony denied having heard it. There was clearly a great
deal of confusion in all of the testimony by the inmates, and there
is no doubt that Mr. McNeil spoke of the hose on th.e~ second occasion
that the alarm went off. We think it would stretch the evidence
unduly to find that there was a threat on the first occasion, and
even farther to find that Mr. Ralph heard such a threat so as to
put him on notice that use of the hose would be a punishment device.
Therefore, in the circumstances of stress in the institution,
inadequate fire training and a situation of some tension we consider
that Mr. Ralph was justified in obeying the order to take the hose
into the corridor. It would, we think, be asking too much of a cor-
rectional officer to require him to question an order relating to'B
possibly dangerous situation in such circumstances. A good test of
the reasonableness of his conduct is to ask how this Soard would
have responded had Mr. Ralph questioned the order and had a sericus
fire broken out. We observe that the precise,,.order given, to hose
down the walls and floor of the corridor, is. not inherently wrong
or illegal. Had it been, of course, obedience would not have been
justified. In these circumstances, however, we think Mr. Ralph
was entitled to obey the order, and perhaps even obliged to. We
refer to Jail Standing Orders 27 and 34, which relate to alarm
response and fire control, which clearly place all responsibility
for decisions relating to fires on the Shift Supervisor, and which
stress a prompt response to orders.
Once Mr. Ralph went into the corridor, events happened rapidly
and out of his control. Mr. McNeil ordered the hose turned on, and Mr.
Robbins complied. Water immediately began to spray widely out of the
.
nozzle, wetting both Mr. Ralph and some inmates. Mr..Ralph then pro-
ceeded into the area and wielded the hose until it was turned off. How
he performed this operation is of critical interest, not only because
of what it tells us of his behaviour but because of the light it
sheds on his state of mind. Mr. McNeil and Mr. Ralph both testify
that he did not deliberately spray the inmates, but that he sprayed
the walls and floors as ordered, and that inmates who got wet did
so because of the large amount of water splashed around in this
process. Mr. McNeil had told.the Ministry's investigator that he
observed that Mr. Ralph "placed a stream of water in each cell and
wetting each cell", but in oral testimony he said that he had meant
that'Mr. Ralph had sprayed along the outside of the cells only.
Mr. Ralph agrees that he sprayed along the walls in which the cell
doors are set, but says he did not spray into the cells.
The evidence of the inmates is generally contradictory, since
all of them suggest a deliberate spraying into the cells. Cn .the
other hand, this testimony was considerably modified on cross-
examination to hew closer to the testimony of Mr. Raloh... Yorecver
the inmates' testimony about how wet each of them gotis of consider-
able interest. On cross-examination, generalized complaints that every-
one was soaked were softened considerably, until the result is
consistent with a finding that Mr. Ralph did not deliberately spray ;
directly at anyone or anyone's property, nor did he spray directly
into the cells. On all the evidence before us, we are unable to
conclude that Mr. Ralph did any more than carry out the duty assigned
to him, and that the water which wetted the inmates was a result of
splashing and spraying rather than deliberate malice. By this time,
of course, it must have been clear to Mr. Ralph that there was no fire,
and no danger. He must have known that the spraying had been a use-
less exercise and, indeed, all of his conduct from then on is con:
sistent with such a knowledge. He did not, nor did anyone else,
make any check to see that the fire,,if any, was out. The lights in
the corridor were not turned on, the inmates were not asked to
investigate, nor was any further action taken. This leads to a strong
inference that whatever fear there may have been of a fire had sub-
sided, and that Mr. Ralph's subsequent conduct must be reviewed in
'__ the light of knowledge that the action taken had been mistaken.
What is critical 'about the period remaining in the shift is
that Mr. Ralph made no effort to ensure that the inmates were supplied
with sufficient dry bedding or clothing so as to allow them to sleep
without danger to health. Mr. Ralph was the officer in charge of the
upstairs area, so the occupants of Number 3 corridor constituted half
of his responsibility. He knew that clothing and bedding must have
been wet, and he knew there had been no fire. Yet at no time did he
attempt to ascertain who was wet, who needed dry bedding or ciothes,
or whether dry materiai could be supplied.
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Mr. Ralph offers several explanations ;;including the violent
reaction of the inmates to the spraying and the lack of dry cloth-
ing in his area. He says he consulted with Mr. McNeil, who seems
to have told him not to bother with dry clothing, but we cannot
accept that he can hide behind Mr. McNeil's decision at this point.
He had an affirmative responsibility for the safety and health of
the inmates, if not for their reasonable comfort, and this was no.
longer a state of apprehended emergency. We cbnfider it a serious
dereliction of his duty to have done nothing about the condition of
the inmates, a dereliction which amounts to participation, by inaction,
in an unlawful punishment. Moreover, we do not accept the facile
explanation that he had checked for dry clothing and had found none.
Some clothing was stored on the lower floor for new admissions, and
the evidence is clear that Mr. Ralph made no attempt to see or have someone
else see if there was sufficient clothing there; he checked, if at all, only
on the upper floor. Nor can the threatening attitude of the inmates be an
excuse, since emergency supplies of clothing could have been passed
through the bars. The fact is that Mr. Ralph did nothing, took no
action, to ensure the health and ~safety of inmates in his care.
In doing so, he either seriously neglected his responsibilities or
deliberately participated in an unlawful punishment, and thus gave
cause for discipline.
In conclusion, we wish to observe emphatically that we do not
.:. condone in any way the events of the night of October 4/5, 1978 in
the Barrie Jail. The hosing of the corridor was either an entirely
improper response to misconduct by the inmates, or a gross error in
judgment followed by a callous indifference to the health of inmates.
But we must decide this case only in respect of the grievor's
responsibility and only on the evidence.~ ..We are of the opinion that
the grievor's responsibility was of a different order from Mr. McNeil's,
who was the shift supervisor and who made the decision to use the hose.
Yet both Mr. McNeil and Mr. Ralph were given ZO-day suspensions, the
heaviest penalty available under the Public service Act short Of
discharge. To recognize proper assignment of blame, we think that
the penalty given to Mr. Ralph should be reduced, but should remain
sufficient to make it clear that a correctional officer's responsi-
bility for inmates is too important to be flouted.
We therefore reduce the penalty on Mr. Ralph to a suspension
for five working days, and order compensation as required to effect
this result. We remain seized as usual to deal with any problems
of implementation.
Oated at Toronto this 4th day of July 1979.
Prof. K. P. Swan Vice-Chairman
I concur
Mrs. M. Gibb Member
Seem dissent attached
Xr. H. Simon Ferber
. .
.r!
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In my view Mr. Ralph carried out his duties as a correctional
officer to, the best of his abilities, considering the circumstances
that existed at the Barrie Jail on the night of October 4/5 1978. He
followed the instructions of his Shift Supervisor Mr. McNeil who has
had almost 20 years' experience as a correctional officer in handling
similar situations.
Mr. Ralph did not aim the hose at the inmates and was out of the
corridor in less than a minute. He testified that none of the inmates
had asked him for a change of clothing. Mr. McNeil visited the corridor.
several times during the night. He found the inmates sleeping and no
one complained about wet clothing. Mr. McNeil also testified that there
was not sufficient clothing and bedding available because of the over-
crowding at the jail ~that particular night.
He stated that he would not authorize a,change of clothing and
bedding in any event for security reasons. He knew some of the inmates
were trouble makers, particularly one of them who. had been there for some
time.
We have also heard testimony that during the fire incident on
August 3rd there had been no change of clothing or bedding for the
inmates. Mr. Keith Bradley the correctional officer who relieved
Mr. Ralph the next morning testied that only 2 of the inmates had asked
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him for a change of clothing. 'He also stated that there was no bedding
available because it was locked up in the stock room and Mr. Prince ".~
had the keys to the stock room.
In my view Mr. Ralph did not deliberately or otherwise cause
any harm or suffering to the inmates and no penalty should be imposed
on him for-the incident of October 4/5 1978.~:
.-.
Mr. H. Simon
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Member