HomeMy WebLinkAbout1981-0556.Thibert et al.81-12-11ONTARIO
CROWN EMPLOYEES
GRIEVANCE
SETTLEMENT BOARD
180 DUNDAS STREET WEST. TORONTO. ONTARIO. M5G 1Z8 -SUITE 2100 TELEPHONE* 416/598- 0688
556/81
Between:
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Before:
OPSEU (Thibert, McGill & Jung)
Grievors
and
The Crown
in Right of Ontario
(Ministry of Correctional Services)
Employer
R. L. Verity, Q.C. Vice Chairman
F. Taylor Member
A. G. Stapleton Member
For the Grievors: A. Ryder, Q.C.
Counsel
Gowling & Henderson
Barristers and Solicitors
For the Employer:
J. F. Benedict
Manager, Compensation and Staff Relations
Human Resources Kanagemen t
Ministry of Correctional Services
Hearings: June
5, 6, 12, 13, 1984
September 20, 21, 26, 1984
October 19, 1984
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DECISION
On September 4, 1981, Garry F. Thibert, Emil Jung
and Raymond C. McGill filed identical grievances alleging
dismissal without just cause. Each Grievor requested reinstatement
with full compensation and benefits.
All three Grievors were employed at the Lindsay Jail
at the time of discharge. Officer Thibert was a C.O. 2 with seven
years seniority
at the Institution. At the time, he was President
of the Local Union. Emil Jung had been employed on the classified
staff since November 24, 1980 and was on probationary status. At
the time of his discharge, he had approximately 2½ months left to
complete his probationary tenure and he had already served some 16
months with the Ministry. Raymond McGill worked for the Ministry
as a "casual" (unclassified staff) having first been employed in
February, 1981.
Grievor McGill had worked only nine shifts and his regular employment
was with General Motors in Oshawa. In addition, Mr. McGill was a
student at Trent University.
At the time of the incident in question, the
Each letter of discharge stated:
"that
you used excessive force on inmate Gary Barnes
during
an incident that took place on May 27, 1981."
Initially, the
matter proceeded to arbitration before a
Board chaired by Professor Peter Barton. Following a six day
hearing, Vice-chairman Barton issued a majority Award dated April
6, 1982 in which all three grievances were dismissed (Professor
D. Collom dissenting). Subsequently, on January 13, 1984, the
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Divisional Court of the Supreme Court of Ontario, in a unanimous
judgment, quashed the Barton Award and referred the matter back
to the Grievance Settlement Board for
a new hearing. In written
reasons for judgment released February 6, 1984, Mr. Justice
O'Driscoll found that the majority Award erred in two significant
respects:
(1)
The
It failed to determine "how the fight started"
and thereby misinterpreted and failed
to apply
the provisions of Section
7 of Ontario Regulations
243/79 pursuant
to the Ministry of Correctional
Services Act, 1978; and
It failed to make credibility determinations which
in effect amounted
to a denial of natural justice.
Hearing before this Panel of the Board consumed
eight separate hearing days. The Board was advised by the Parties
that the evidence presented was not identical to the evidence pre-
sented to the Barton Board.
In this complex
matter, many relevant facts are in
dispute.
Some background information is helpful to fully comprehend
the incident in question. The Lindsay Jail is a small maximum security
institution which
was constructed originally in 1863. The Jail has
three floors and six cell block areas (referred to as ‘corridors")
which can accommodate 30 male and six female inmates. Annually, there
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are approximately 1,200 inmate admissions to the Jail. The
segregation area (referred
to as "the drunk tank") is Corridor
No. 1 which contains six individual cells 8 feet by 3 feet, each
secured by a heavy locked grill door. No. 1 Corridor also contains
a common area 30 feet X 9 feet known as a "day room". The day room
contains no furniture with the exception of a table and bench
(similar to
a picnic table) which is affixed to the north wall of
the Corridor. At the southeast corner of the day room, there is an
open entranceway which in turn leads to a washroom containing a
wash basin and a toilet,, Individual cells in Corridor No. 1 have
no toilet facilities other than
a pail. The only entrance into
Corridor No. 1 is through a heavy grilled barrier which is kept
secured at all times.
On April 17, 1981, the Lindsay Police arrested three
individuals, Blacklock, Brabant and Barnes, on charges of uttering
counterfeit money. All three men had extensive federal penitentiary
experience and
were recognized initially by the Lindsay Police as
being dangerous. That fact was promptly relayed to Jail staff.
From the time of the initial admission of these inmates
to the Lindsay Jail, Brabant and Barnes expressed the view that
they resented being incarcerated in what they believed to be a
"Mickey Mouse" institution. During their incarceration, they
continually requested transfers to a federal institution. Inmates
Barnes and Brabant were constantly verbally aggressive and abusive
towards the guards and frequently made excessive demands upon the
staff.
-5-
On April 18, 1981, inmate Blacklock was placed in No.
1 Corridor as a result of a misconduct. An Occurrence Report
filed by a Correctional Officer alleged that Barnes and Brabant
threatened to "smash up" No. 3 Corridor and assault the staff in
the event that Blacklock
was not returned to No. 3 Corridor.
On April 20, 1981, inmate Barnes deliberately set off
the fire alarm system in No. 3 Corridor. Later the same night,
Barnes broke plaster
off the ceiling of the washroom, and tore up
tile in the washroom of No. 3 Corridor.
Inmate Brabant assaulted Correctional Officer Morley on
April 20 by kicking him in the chest. Later that same evening after
Brabant had been returned
to his cell, he threw his food tray and
urine pail at Correctional Officers Morley and Jung.
At approximately 9:00 p.m. on May 24, 1981, Brabant and
Barnes, for no apparent reason and without provocation, viciously
attacked Sergeant Blackmore and Correctional Officers Bryants and
Widdis. Officer Widdis received two black eyes and bruises as a
result of the melee and was off work for some five days. Officer
Bryants received a broken jaw, a broken hip, cracked ribs and
bruising and remained away from work until October, 1981. Sergeant
Blackmore received head injuries of such severity that he has still
not returned to work and is not expected to do so in the future.
-6-
That incident has been described by some officers as
an attempted
jail break; however, regardless of the accuracy of
that characterization, it was indeed a vicious beating of two
Correctional Officers. As a result, Barnes and Brabant were
placed in separate cells in No. 1 Corridor. Subsequently, Barnes
and Brabant
were convicted of assault causing bodily harm. Barnes
was sentenced
to 4½ years in prison for his involvement in the
assault.
On Monday, May 25, 1981, Ministry Inspector C. R. Leutz
attended at the Lindsay Jail to conduct an investigation. He spoke
with Jail Superintendent Peter Campbell and interviewed the parties.
Inspector Leutz advised the Superintendent at that time that Barnes
was complaining of
a sore left hand. Leutz also advised the
Superintendent that in his opinion, Barnes and Brabant should be
removed to another institution.
On the morning of May 25, Sergeant Norman Taylor made
the following entry into the log book in Corridor No. 1:
"Brabant and Barnes to remain in cells in number one
Corridor. Meals (to be on) paper. No privileges.
(sic). At least two officers with riot (sticks) to
be in corridor any time one of them is out of cell
(when wash up, etc. No medication for either until
further notice by order supt.
(Initials) N. T."
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Riot sticks are kept in the Jail in the duty office
in a locked security cabinet. A riot stick is approximately
3 feet long X 1¼ inches in diameter and is constructed of a
heavy plastic material. A stick contains grooved areas at
each end and a leather strap at one end. Apparently, riot
sticks are normally used for crowd control.
At the Hearing, Superintendent Campbell denied the
issuance of the order referred to above. He testified that he
didn't see the order until he returned to the Institution on
May 29; however, the Superintendent candidly admitted that he
did observe riot sticks being carried by officers on May 25. In
fact, he testified that he demonstrated
to Officer Sinclair "how
to hold it". In cross-examination, he testified that "carrying
of sticks after a vicious incident appeared appropriate I didn't
challenge it." Superintendent Campbell did challenge the appropriate-
ness of the orders: denial of medication and withdrawal of privileges.
This Board finds that the use of riot sticks at the Lindsay Jail on
May 25, 1981, was condoned by Superintendent Campbell.
On the morning of Tuesday, May 26, Superintendent Campbell
left the Institution
to attend a Ministry Conference at Opinicon
Lodge north of Kingston. The Superintendent returned to work the
morning of May 29.
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On the afternoon of Tuesday, May 26, 1981, inmate
Brabant had an altercation with Sergeant Whalen on the stairway
to the shower room. Sergeant Whalen struck Brabant on the shoulder
with his riot stick on several occasions causing Brabant to fall
down stairs and injure himself. Sergeant Whalen was discharged
as a result of his involvement in this event for the use of
excessive force. The Whalen discharge was upheld by the Public
Service Grievance Board in a majority Award of Arbitrator
C. G. Simmons dated March 11, 1982, 907/82 (R.J.C. Pringle,
dissenting)
The foregoing is a brief chronology of events, most
of which preceded the incident in question on May 27, 1981. On
that date, the three Grievors reported for work on the same shift
commencing at 7:OO p.m. Sergeant McGinn, a Shift Supervisor, was
the officer in charge between the hours of 7:OO p.m. May 27, and
7:OO a.m. on May 28.
Inmate Brabant was in Cell No. 1 in Corridor No. 1 and
inmate Barnes was in Cell No. 5 in the same corridor. Both inmates
were dressed in security clothing referred to as "baby dolls" a
heavy quilted jumper garment extending to the knees. As the log
book indicates, Barnes had
a 20 minute visit commencing at 20:55
from his lawyer. Entries in the log book indicate that during
the lawyer's visit and following that visit, Barnes
was demanding
and somewhat agitated. He demanded "smokes and requested
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a toothbrush and the right to see a doctor. The log book
entry records that'as of "21:15 inmate Barnes
was being abusive
in manner". However, by 22:00 Barnes was described as lying
down in his
cell.
Sergeant McGinn made the decision to allow Barnes and
Brabant to leave their
cells, under supervision, in order to
utilize the washroom facilities. Accordingly, at approximately
10:10 p.m. Officers Thibert, Jung and McGill entered Corridor No.
1. Officers Jung and McGill carried riot sticks; however, Officer
Thibert had left his stick outside the main grilled door. Sergeant
McGinn positioned himself outside the main grilled doorway,
as
required, to observe events. Officer Thibert unlocked Cell No.
1 whereupon inmate Brabant walked to the table, picked up a towel
and received
a toothbrush from Officer Thibert, who by this time
had positioned himself in the entranceway to the washroom. Thibert
explained that he positioned himself in this fashion
so that he
could observe Brabant
at all times in the washroom area. Brabant
was then returned to his cell without incident.
According to the Grievors' testimony, the three officers
then proceeded to Cell No. 5 to follow the same procedure for inmate
Barnes. Mr. Thibert opened the cell door and released the inmate
and then proceeded to position himself in the entranceway to the
washroom. Barnes walked to the table, picked up his towel and
10
proceeded to the washroom area. According to all three officers,
Mr. Thibert extended his left hand which contained a toothbrush.
Instead of taking the toothbrush, Barnes allegedly grabbed
Thibert's wrist with his right hand, pulled Thibert towards him
and swung out with the fist of his left hand in the direction of
Thibert's head. According to Thibert's evidence, the officer
deflected the blow with his right arm and in turn struck out at
Barnes with his right hand. The two men then fell to the floor
outside the washroom
area near the east wall. According to
Thibert's evidence, Barnes attempted to "knee
me in the groin".
Mr. Thibert freed himself, got to his feet and promptly ran to
the locked grill to obtain a pair of handcuffs from Sergeant
McGinn, and also to retrieve his riot stick. Barnes got to his
feet and attempted to follow Thibert. Officer Jung blocked that
manoeuvre by cross-checking Barnes into the
east wall. According
to McGill's evidence, Barnes bounced off the wall yelling and
screaming, and in the process McGill lost his riot stick. It was
McGill's testimony that he believes that Barnes kicked the stick
out of his hand. In the melee that followed, Jung struck the
inmate with his riot stick enabling McGill to retrieve his stick.
At the Hearing, McGill testified that he hit Barnes "two
or possibly three times" with his riot stick on one occasion on
the back of Barnes' leg near the buttocks area. In his statement
to Inspector Leutz dated July 27, 1981 (Exhibit 131, McGill stated
"I think I struck him at least three times". Officer Jung admits
to hitting the inmate from three to five times.
11
Thibert returned to the scene and according to his
testimony, ordered Barnes "to stop your foolishness, right now".
According to the testimony of both McGill and Jung, neither officer
struck Barnes after Thibert had re-entered the fray. Officer
Thibert swung his
riot stick in baseball style against Barnes'
legs. The blow caused Barnes to stagger and go down on one knee
and then get up again. Thibert hit him a second time in the same
fashion. The second blow knocked the inmate to the floor and his
body came to rest face down near the bench. Thibert straddled
Barnes and pushed down with his riot stick on Barnes' body "in
hockey style" thus preventing any further movement on the inmate's
part. At this time, Barnes followed instructions to place his hands
behind his back and he
was then handcuffed by Thibert. Finally,
Barnes was dragged along the floor by the officers into Cell No. 5.
In his statement to Inspector Leutz on July 27, Mr. Jung
stated that Mr. Thibert had struck Barnes three or four times trying
to knock him down. Each of the Grievors denied striking Barnes on
the head with the
riot sticks. Sergeant McGinn verified that aspect
of their testimony.
On the evidence,
it is unclear precisely how many times
Barnes was struck by the riot sticks. On July 27, 1981, Inspector
Leutz posed the following question to Officer Jung (Exhibit 14):
"Q How many times in total would you estimate that
Barnes was hit?
12
Following the altercation, Barnes bled profusely from
the head and as a result both the ambulance and the police were
promptly called. Sergeant McGinn testified that he was satisfied
that Barnes had hit his head on the radiator or the pipes
surrounding the radiator. The inmate’s evidence was that he was
hit on the head with riot sticks and did not hit his head on the
radiator or the radiator pipes or the corridor table or bench.
Lindsay Ambulance attendants arrived
at the Jail at
approximately 22:23. The attendants bandaged Barnes’ head,
placed him in
a cervical support and applied a splint to his
left leg. Barnes received medical attention from Dr. Bruce Graham
at the Ross Memorial Hospital at approximately 23:00, and was
returned to the Lindsay Jail shortly after 1:00 on May 28.
Barnes’ recollection of the events differed substantially
from the evidence referred to above. The inmate alleged that he
was struck a blow by Thibert which glanced off the right side of
is jaw. He testified that he was then “struck from behind two or
three
times” on the head and across the shoulders by riot sticks,
and that he
was repeatedly struck by each of the officers with riot
sticks after he had fallen to the floor. Barnes’ testimony was to
the effect that, for protection, he rolled himself across the floor
and pulled his body part way under the bench prior to being handcuffed
13
Barnes made two brief statements to Inspector Leutz.
One dated June 2, 1981 (Exhibit 18) taken at Millbrook Correctional
Centre, and a second statement in the form of questions and answers
dated August 6, 1981 (Exhibit 10) taken at Millhaven Penitentiary.
These statements are notable, primarily for their brevity. The
brevity robbed both statements of significance.
Barnes' explanation
of the incident as contained in the
June 2 statement before Inspector Leutz was as follows:
"They came to my cell and said it's time to clean up,
I got up and walked out of the cell. I stopped at
the wash area of #1 corridor and waited for the
officer Thibert to get out of the way and he threw
a punch at E, I moved and it glazed the side of my
right jaw. I fell on the floor and the billies,
riot sticks started to hit me
myself by covering my face and crawled under the
bench, they pulled me out and they kept hitting
me. The officers were known to me but I don't
know their names
I tried to protect
I was hit several times and was in a daze. I made
like they knocked me out so they would stop. They
handcuffed E and threw me into the cell. I was
covered with blood.
Ontario Provincial Police Detective Inspector Scott
Raybould took
a more indepth statement from Barnes on June 3, 1981
at Millbrook Correctional Centre (Exhibit 49). Part of that
statement is as follows:
14
"Between 10:00 p.m. 11:00 p.m. 3 guards came on
the range 2 with riot sticks. Thibert was one
of them. He had no stick. Brabant was asked to
wash up and he did and went back to his cell. I
was told 'time to wash up' by Thibert.
of
my cell.
Thibert was standing in the washroom doorway. I
had the towel in my right hand drapped over my
wrist.
his hand. Those are the articles I reached for.
Mr. Thibert said nothing to me.
standing in front of the washroom door, on a bit
of an angle facing
me.
get the toothbrush then Thibert threw a punch.
It glanced off my right cheek.
and I was struck by one of the clubs on the left
shoulder from behind. I fell down. I was repeatedly
hit by the clubs
and punched.
protect my head. I got hit a bunch of times and then
I made a move Grabbed the pole and pulled ½ my body
under the bench.
My left leg was wacked 5 or 6
times whilte I was under the bench.
form under the bench and hit several more times by
the clubs. I kept my hands up over my head.
felt blood running from my head.
I fell flat on the floor.
times I almost passed out. My hands were pulled
behind my back and handfed.
to the door and slid into my cell..
I came out
I walked towards the wash up area.
Thibert had toothpaste and a toothbrush in
Thibert was
I put out my right hand to
I went off balance
I used my hands to
I was pulled
I
I
felt dizzy.
I was hit several more
I was then dragged
As a result of the May 27, 1981 incident, all three
Grievors were charged under the Criminal Code of Canada with
assault causing bodily harm. In February 1982, each of the
Grievors were acquitted of the charges.
There can be no doubt that Gary Barnes incurred numerous
personal injuries resulting from the May 27 skirmish. Ambulance
attendant Jim Patton testified that Barnes was "semi-conscious"
when the attendants arrived and there was "substantial external
bleeding". Patton applied a long splint on Barnes' left leg because
of a suspicion of a possible fracture. Dr. Bruce Graham attended
15
Barnes at 11:00 p.m. at Ross Memorial Hospital in Lindsay. In
his medical report dated May 12, 1984 (Exhibit 10) Dr. Graham
stated that Barnes suffered "multiple injuries" and Barnes had
stated that his injuries had been sustained by falling down a
flight of stairs. Dr. Graham reported that Barnes had a "great
number of bruises over his trunk and extremities". His injuries
included severe bruise to the left lower leg; bruises over his
shoulders; bruises to the hands, especially the left hand; bruises
over his back; a three inch laceration to the scalp which required
sutures; a deep bruise on his right forearm; and an abrasion
to
his left elbow.
By way of conclusion, Dr. Graham comments:
"I should state, here, that I felt that the bruises
I
on his shoulders, am and left leg were mst llkely
to have been caused by blows from a riot stick.
do not feel that the scalp laceration was caused by
a riot stick..
In a letter of clarification dated May 22, 1984 (also
exhibit 10), Dr. Graham recollects that Barnes did state that the
injury to his left hand predated the May 27 incident. In addition,
Dr. Graham stated that the swelling to the inmates left hand "was
consistent with a fracture". Subsequently at Millbrook Correctional
:entre, it was confirmed that Barnes indeed had a broken left hand
and a cast was applied.
16
Detective Inspector Raybould interviewed Barnes at
Millbrook Correctional Centre on June 3 and reviewed in detail
for this Board the various bruises observed on Barnes' body.
Inspector Raybould observed a second laceration (unsutured)
on Barnes' head which was approximately 1-3/4 inches in length.
Raybould concluded that the second head injury had apparently
been overlooked by Dr. Graham during the initial investigation
on May 27.
Each of the Grievors prepared Occurrence Reports,
independently of each other, that were remarkably brief and
seriously defective in content. For example, Officer Thibert's
Occurrence Report (Exhibit 51) reads as follows:
"At approximately 2215 hrs this date we were doing
the wash up in #1 corr, (inmate) Barnes was let out
of his cell he stepped into the washroo and I
offered him his toothbrush at this time he grabbed
my left wrist and swung at me
by myself and Mr. Jung and Mr. McGill and placed in
a cell."
He was restrained
This Occurrence Report made
no reference to the use of
riot sticks to subdue the inmate, nor injuries to the inmate, nor
to the fact that the inmate received medical attention at the
hospital.
primarily for their lack of detail. In addition, the Grievors
collectively failed to file accident and injury reports and
misconduct reports.
Each of the Grievor's Occurrence Reports
are significant
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The Employer's position was that both Thibert, a member
of the classified staff, and Jung,
a probationary employee, were
dismissed from their employment pursuant to Section 22(3) of
the Public Service Act.
Therefore, none of the usual concerns
affecting termination of a probationary employee arise in this
case. However, as the letter of September 4 to Raymond McGill
indicates, his services were "terminated" effective that date
(Exhibit 3).
The Ministry representative J. F. Benedict argued that
the May 27, 1981 incident was a premeditated act of brutality
against inmate Barnes, allegedly in retaliation for the inmate's
involvement in the May 24 incident. Alternatively, it was argued
that if the Board found that Barnes did provoke the incident, the
subsequent events including the injury to Barnes resulted from
the negligence
of the Grievors in their failure to take the
necessary precautions to avoid the incident. Mr. Benedict argued
that the Grievors
were responsible for what transpired and that
the use of force by an inmate does not authorize retaliation in
an unrestrained manner.
Alick Ryder, the Grievors' Counsel, argued that the
testimony of inmate Barnes
was not credible and that it was Barnes
who had provoked the incident. Mr. Ryder contended that the
Divisional Court's decision implied that if Barnes instigated
18
the fight, then the Grievors could not be faulted for the
ensuing events in the course of bringing the incident to a close.
He alleged that there was no blameworthy act attributable to any
of the Grievors and that each Grievor had been acquitted in the
Courts of the charge of assault causing bodily harm.
The Employer submitted numerous arbitral precedents
for the Board's consideration. Although useful for the principles
involved, it remains a truism that each case is determined on its
own particular facts.
It has long been recognized that in civil matters the
standard of proof is upon the balance of probabilities, while
the test in criminal matters is proof beyond a reasonable doubt.
However, in matters where an employee's livelihood is at stake,
it is generally accepted by arbitrators that the standard of
proof required is that clear and cogent evidence must be adduced.
In this matter, a key issue for determination is the
issue of credibility. Which version of the facts is the Board
to believe? If the Board
were to accept Barnes' version of how
the fight started,
we would be obliged to find that an unprovoked
assault by Officer Thibert in which Officers Jung and McGill were
willing participants would indeed justify discharge of all three
Grievors
In assessing credibility, the Courts have advanced certain
guidelines. A judge's discretion (and by analogy an arbitrator's
discretion)
is that the acceptance or rejection of testimony
cannot be said to be totally unfettered. For example, in R. V.
Covert (1916) 28 C.C.C. 25, Mr. Justice Beck stated at p. 37:
19
"In my opinion it cannot be said without limitation
that a judge can refuse to accept evidence.
he cannot if the following conditions are fulfilled:
I think
That the statements of the witness are not
in themselves improbable or unreasonable;
That there is no contradiction of them;
That the credibility of the witness has
not been attacked by evidence against his
character
That nothing appears in the course of his
evidence or of the evidence of any other
witnesses tending to throw discredit upon
him; and
That there is nothing in his demeanour while
in Court during the trial to suggest untruth-
fullness. "
Similarly, referring to the resolution of contradictory
evidence in general, Mr. Justice O'Halloran of the British Columbia
Court of Appeal stated in Weeks v. Weeks [1955] 3 D.L.R. 704 (B.C.C.A.)
at p. 709:
"In such cases a Court must look for the balanced
truth in the corroborative evidence if such exists,
and in any event measure all the evidence perspec-
tively by the test of its consistency with the
preponderence of probabilities in the surrounding
circumstances. "
The Ontario Court of Appeal in Phillips v. Ford Motor
Co. of Canada Ltd. et al (1971) 2 O.R. 637 (Schroeder, J.A.)
approved the rationale of Mr. Justice O'Halloran delivered in
the British Columbia Court of Appeal in Faryna v. Chorny [1952]
2 D.L.R. 354 at pp. 356-8 as follows:
20
"If a trial Judge's finding of credibility is to
depend solely on which person he thinks made the better
appearance of sincerity in the witness box, we are
left with a purely arbitrary finding and justice would
then depend upon the best actors in the witness box.
On reflection it becomes almost axiomatic that the
appearance of telling the truth is but one of the
elements that enter into the credibility of the
evidence of a witness.
powers of observation, judgment and memory, ability
to describe clearly what he has seen and heard, as well
as other factors, combine to produce what is called cred-
ibility, and cf. Raymond v. Bosanquet (1919), 50 D.L.R.
560 at p. 566, 59 S.C.R. 452 at p. 460, 17 O.W.N. 295.
A witness by his mer may create a very unfavourable
impression
of his truthfulness upon the trial Judge,
and yet the surrounding
circumstances in the case
may point decisively to the conclusion that he is
actually telling the truth.
comparatively infrequent cases in which a witness is
caught in a clumsy lie.
Opportunities for knowledge,
I am not referring to the
The credibility of interested witnesses, particularly
in cases of conflict of evidence, cannot be gauged
solely by
the test of whether the personal demeanour
of the particular witness carried conviction of the
truth.
examination
of its consistency with the probabilities
that surround
the currently existing conditions. In
short, the
real test of the truth of the story of a
witness in such a case must be its harmony with the
preponderance of the probabilities which a practical
and
informed person would readily recognize as reasonable
in that place and in those conditions. Only thus can a
Court satisfactorily appraise the testimony of quick-
minded, experienced and confident witnesses, and of
those shrewd persons adept in the half-lie and of long
and successful experience in combining skilful exaggeration
with partial suppression of the truth.
may testify what he sincerely believes to be true, but
he may be quite honestly mistaken.
to say 'I believe him because I judge him to be telling
the truth', is to come to a conclusion on consideration
of only half the problem.
self-direction of a dangerous kind.
The test must reasonably subject his story to an
Again a witness
For a trial Judge
In
truth it my easily be
The trial Judge ought to go further and say that
evidence of the witness he believes is in accordance
with the preponderance of probabilities in the case
and, if his view is to command confidence, also state
his reasons for that conclusion. The law does not
clothe the trial Judge with a divine insight into
the hearts and minds of the witnesses. And a Court of
21
Appeal must be satisfied that the trial Judge's
finding
of credibility is based not on one element
only
to the exclusion of others, but is based on
all the elements by which it can be tested in the
particular case.
Mr. Justice Stephen put it another way: He
said (General View of the Criminal Law, 2nd ed.
p 191) 'that the utmost result that can in any
case be produced by judicial evidence is a very
high degree of probability The highest probability
at which a court of justice can, under ordinary
circumstances, arrive is the probability that a
witness or a set of witnesses tell the truth when
they affirm the existence of a fact."
There can be no doubt that inmate Gary Barnes, at age
27 in 1981 was a seasoned criminal whose unenviable record of
public offences dates back to 1971. Clearly, he has a propensity
for violence he is volatile, unpredictable, vicious and capable
of irrational behaviour. In short, he cannot be assessed on the
traditional standard of the reasonable man.
On all the evidence, the Board is unable to find that
there was any premeditated scheme on the part of the Grievors to
provoke an incident. Further, there was no cover-up by the Grievors
following the melee. Clearly, none of the three guards had prepared
themselves for a deliberate confrontation with Barnes. Jung was
wearing glasses, and all had the Ministry pen and pencil sets in
their breast pockets and all
were wearing watches.
were carrying riot sticks as they were obliged to do upon orders
of the Superintendent. The fact that Thibert was carrying a
toothbrush as opposed to a riot stick is one factor mitigating
Jung and McGill
22
against the finding of the planned retaliation. All three
Grievors
were under the observation of Shift Supervisor McGinn,
a management representative. Following the incident, there was
no attempt to disturb the area prior to the arrival of the
ambulance attendants and the Lindsay police. In fact, there
was no delay in notifying the police of the incident.
Without question, the atmosphere at the Lindsay Jail
was charged with tension following the incident of May 24 in which
inmates Barnes and Brabant viciously attacked three Correctional
Officers and severely injured two of the Officers.
After anxious and careful consideration of all the
evidence and applying the guidelines for credibility determinations
referred
to above, this Board prefers the evidence of the three
Grievors
as being the more probable and natural account of the
facts. It is not surprising that there should be some discrepancies
in the testimony presented by each of the Grievors, bearing in mind
that each was testifying about an emotionally charged incident that
occurred
some three years ago. In particular, Officer Thibert
demonstrated a desire to be candid with the Board and not to stray
beyond his recollection of the events. In our opinion, inmate Barnes
did not testify with
a frankness which the Board was entitled to
expect. In his testimony, Barnes contradicted previous sworn
testimony on numerous occasions. In other respects, he was unable
to recall events. If Barnes had been the subject of an unprovoked
attack, it is understandable that he would not complain to other
23
Lindsay Jail staff members; however, it is less understandable
that he failed to complain to Lindsay Police officers, hospital
staff and to Dr. Graham on the night of May 27, to the Justice
of the Peace who saw him on May 28, or to the Millbrook Correctional
Staff on his admission
on May 29.
The Board was impressed with the testimony of Sergeant
Gordon Widdis. The Widdis testimony contradicts the Barnes testimony
in several respects. In short, the Board found Barnes' evidence
thoroughly untrustworthy and unsupported by corroborative evidence.
For example, from the evidence of ambulance attendants Jim Patton
and Clare Gordon, we are satisfied that no conversation took place
between officer Thibert and inmate Barnes as was alleged by Barnes,
either in the transportation to or from Ross Memorial Hospital.
Accordingly, the Board makes the following findings of
Barnes provoked the incident of May 27 by grabbing Thibert's fact.
left
wrist and throwing a punch which Thibert managed to deflect.
Barnes was, in essence,
the agent of his own injuries by inviting
Thibert to strike back in self-defence.
In the process, Thibert
and Barnes fell to the floor and in the ensuing grappling, we
accept Thibert's evidence that Barnes attempted to kick Thibert
in the genital area.
handcuffs and his riot stick, with Barnes in pursuit. Officers Jung
and McGill came to Thibert's assistance, as was their duty. Jung
cross-checked Barnes into the east wall whereupon Barnes bounced off
the wall. From that point in time, it is difficult to determine
Thibert got to his feet and withdrew to obtain
24
with precision the sequence of events. Apparently McGill lost
his riot stick either as a result of Barnes' action in kicking
it out of McGill's hands, or otherwise. By this time Barnes was
on the rampage. To divert Barnes, Jung struck him on several
occasions with his riot stick. McGill successfully retrieved
his riot stick and used it repeatedly in an attempt to force
Barnes to the floor. Thibert then rejoined the fray and as a
result Jung and McGill withdrew. Thibert was able to bring Barnes
under control by striking him several hard blows to the legs, all
the while shouting
to Barnes to cease and desist. The matter came
to
a close after Barnes dropped to the floor for the final time.
Thibert then straddled Barnes on the floor, and when there was no
further attempt at resistance, the inmate was handcuffed by Thibert.
The Board has no hesitation in accepting the evidence of
Thibert that the entire incident occupied
no longer than two to three
minutes.
The evidence of Sergeant McGinn essentially supports the
Grievors' testimony with some notable variations. The Board does
not doubt the honesty of Sergeant McGinn in his attempt to recollect,
to the best of his ability, the sequence of events. We do, however,
question his accuracy in the observation of those events. From the
location of the blood spatterings as described by Inspector Raybould,
it is unlikely that Barnes struck his head on the radiator or surrounding
pipes as was strongly suggested by Sergeant McGinn. Similarly, it is
25
unlikely that Barnes was hit with riot sticks while he was on
the floor as was Sergeant McGinn's evidence. Yet in other
respects,
we do accept McGinn's testimony.
Ontario Provincial Police Detective Inspector Raybould
undertook a thorough investigation of the physical condition of
Corridor No. 1 at the Lindsay Jail on June 8, 1981. Blood stains
were located on the wall immediately east of Cell No. 6 and immediately
west of the entranceway leading to the washroom. Blood was visible
on the north leg of the table next to the bench. Inspector Raybould
admitted that the forensic clinic testing results of the blood
samples were inconclusive. Similarly, it cannot be ascertained
with precision how Barnes received lacerations
to the head. A
second scalp laceration was discovered for the first time several
days after Barnes had been admitted to Millbrook Correctional Centre.
If that second laceration occurred as a result of the struggle on
May 27, it is improbable that it would not have been discovered
by either the ambulance attendants, Dr. Graham, the nurses at Lindsay
and at Millbrook and the doctor who first saw Barnes at Millbrook.
Lindsay Police Officers Russell Moore and Randolph Johnson
testified that they arrived at the Lindsay Jail at approximately
10:24 p.m. on May 27. An Occurrence Report was filed as to the
incident (Exhibit 45),
and both Police Constables submitted undated
written reports prepared
sometime after the event (Exhibits 44 and 46).
Both officers were interviewed by O.P.P. Detective Inspector Raybould
26
(Exhibits 43 and 47). None of these police statements were
sufficiently detailed to assist the Board in its determination.
Obviously, the Lindsay Police considered the incident to be more
appropriately an internal Ministry matter. However, the Board
is satisfied that Correctional Officer Thibert did relate to
Police Constable Russell Moore the gist of his version of what
had transpired.
In all probability, Barnes injured his left hand during
the May 24 incident. The extent of the injury to Barnes' left
hand on that occasion will never be known. One would not expect
a reasonable man to provoke the May
27 incident with such an injury.
In our opinion, Barnes cannot be assessed on the test of the
reasonable
man.
As indicated previously, each of the Grievors' Occurrence
Reports left a good deal to be desired. Unquestionably, the Grievors
can be faulted for failure
to file Accident and Injury Reports as
well as Misconduct Reports. The Board does not find that the
incompleteness
of the reports adversely reflects upon the credibility
of the Grievors. On the evidence, there was no attempt on the part
of the Grievors to conceal evidence. The Board finds as a fact that
Officer Thibert did relate to the Lindsay Police the gist of what
transpired on May 27. No management official called upon any of
the Grievors for more detailed Occurrence Reports. Similarly, no
management official called for the production of Accident and Injury
Reports or Misconduct Reports. In our opinion, it is not a
27
convincing argument to wait until the arbitration hearing to
fault the Grievors for deficiencies in Occurrence Reports or
failure to file other reports.
The next issue for determination is whether excessive
force
was used to restrain inmate Barnes.
Ontario Regulation 243/79 made pursuant to the Ministry
of Correctional Services Act, 1978 states in Section 7 as follows:
(1) No employee shall use force against an inmate
unless force is required in order to,
(a) enforce discipline and maintain order
within the institution;
(b) defend the employee or another employee
or inmate from assault;
(c) control a rebellious or disturbed inmate; or
(d) conduct a search.
But where force is used against an inmate, the
amount of force used shall be reasonable and
not excessive having regard to the nature of the
threat posed by the inmate and all other circum-
stances of the case.
(2) Where an employee uses force against an inmate,
the employee shall file a written report with
the Superintendent indicating the nature of the
threat posed by the inmate and all other cir-
cumstances of the case.
In addition, each Grievor has signed an acknowledgement
of understanding
of a document prepared by then Deputy Minister L.
R. Hack1 dated July 25, 1968 entitled "Assaults on Inmates".
(Exhibits 58, 68 and 69)
- 28
The Deputy Minister's letter reads, in part, as follows:
"You are therefore directed to inform all employees
of your institution that
assaults on inmates in-
volving the improper use of physical force (example:
slapping, striking or punching) will not be tolerated.
Where it has been established that such action has
taken place, the offending employee will be dismissed
from the service.
There are, of course, occasions when it is necessary
for emloyees to use
some form of physical force in
order to control the behaviour of certain wards or
inmates. Some may become disturbed, agitated or
rebellious to the point where it is necessary to
restrain by physical force, but only sufficient force
should be used in order to accomplish the restraint.
In adult institutions an inmate may become agitated
and attack an employee or another inmate. Certainly
restraining force should be used and an employee or
inmate has every right to defend himself and others
against physical attack. However, in every instance
where physical force is used, a complete written
report of the incident will be made and submitted,
through the usual channels.
Whether force used against an inmate is reasonable or
excessive within the meaning of Section 7 of the Regulations is
an assessment that an arbitration board is compelled to make,
having regard to the threat posed by the inmate and the circum-
stances of the case.
In the instant grievance, we make that assessment in
the full realization that the Grievors were confronted by a
powerfully built inmate on the rampage who was capable of both
violence and viciousness. It is only human to act spontaneously
in such a situation, where there
is insufficient time to weigh
the niceties of the appropriate measure of defensive action. See R. v.
Baxter (1976), 27 C.C.C. (2d) 96 111, Martin J.A.:
29
". .An accused's belief that he was in imminent danger
from an attack may be reasonable, although he my
be mistaken in his belief. Moreover, in deciding
whether the force used by an accused was more than
was necessary in self-defence under both S. 34 (I)
and (2) the jury must bear in mind that a person
defending himself against an attack, reasonably
apprehended, cannot be expected to weigh to a
nicety, the exact measure of necessary defensive
action: Palmer v. The Queen (1971, 55 C.R. App.
R. 223 at p. 242; R. v. Preston (1953, 106 C.C.C.
135 at p. 140, 17 C.R. 20, 9W.W.R. (N.S.) 57;
R. v. Ogal (1928, 50 C.C.C. 71 at pp. 73-4, [1928
3 D.L.R. 676; R. v. Antley [1964] 2 C.C.C. 142 at
p. 147, [1964] 1 O.R. 545, 42 C.R. 384 at p. 389."
In the instant grievance, the officers were under orders
to carry riot sticks effective May 25, 1981. Clearly, the incident
of May 27, 1981 was the first occasion within recent memory that
riot sticks have been used at the Lindsay Jail. As indicated
earlier in this Award, the Board has determined that Superintendent
Campbell condoned the use of riot sticks following the May 24 incident.
Of particular significance is the fact that the Lindsay Jail staff
had been given no instruction in the appropriate use of riot sticks.
However, by the same token, the issuance of riot sticks does not
necessarily mean that they must be employed in a given situation.
The issuance and deployment of riot sticks is a matter
within management's jurisdiction. Prudence would suggest that
management give
appropriate usage of riot sticks.
of this Award should not be construed as condoning the use of riot
careful consideration to the instruction and
We hasten to add that the findings
sticks.
- 30 -
In retrospect, numerous suggestions could be advanced
as to what alternatives the Grievors could have chosen to
minimize the use of force. However, that is not the mandate
of an arbitration board. Our mandate is limited to a review
of what did occur and
to assess in that light the allegation
of the use of excessive force.
Here, we find that Barnes did pose a real and substantial
threat to the Grievors' safety and to the security of the Institution -
a fact that was known to each of the Grievors. Barnes was struck
by riot sticks on numerous occasions by the three Grievors. Blows
were struck by the Grievors collectively to the inmate's arms,
shoulders and legs - all blows to non-vulnerable areas of the body.
On the evidence, we reject Barnes' testimony that he was struck
on the head with riot sticks. The opinions of Dr. Bruce
Graham and neurosurgeon Dr. W. J. Horsey tend to discredit that
allegation. However, the head injuries aside, there is no doubt
that Barnes sustained numerous injuries resulting from the deployment
of riot sticks. Accordingly, on the evidence of Dr. Graham and
Inspector Haybould as to the extent of the physical injuries, the
Board finds that there was excessive force used by the Grievors in
an attempt to restrain inmate Barnes. The excessive force was the
result of the combined efforts of the three Grievors.
The finding of excessive force is not the result of
malice or any premeditated plan, but rather of inexperience in
the deployment of riot sticks. The Grievors were under orders
31
from the Superintendent to carry riot sticks and it was as a
result of their inexperience and their lack of training that
excessive force was the end
result.
For the reasons expressed above, the Board finds that
discharge
is an excessive penalty within the meaning of Section
19(3) of the Crown Employees Collective Bargaining Act In our
opinion,
a lesser penalty is appropriate in the case of each
Grievor.
In
a determination of substituted penalties, we are
guided by the wording of Section 19(4) of the Crown Employees
Collective Bargaining Act That Section states:
"S.19 (4) Where, in exercising its authority under subsection
(3), the Grievance Settlment Board finds that an
employee who works in a facility,
(a) has applied force to a resident in a facility,
except the minimum force necessary for self-defence
or the defence of another person or necessary
to restrain the resident;
The Grievance Settlment Board shall not provide
for the employment of the employee in a position
that involves direct responsibility for or that
provides an opportunity for contact with residents
in a facility, but the Board may provide for the
employment of the employee in another substantially
equivalent position.
In Section 19 (5) (a) "facility" is defined to include
"(v) a correctional institution under the Ministry of Correctional
Services Act", and in 19 (5) (b) a "resident" is defined to include
an inmate.
32
This statutory provision dictates that where an
employee is found to have used excessive force against an
inmate, reinstatement of the employee must not be to a position
in a correctional institution involving direct inmate contact.
There is no evidence before the Board that any of the
Grievors, with the exception of Garry Thibert, has a disciplinary
record. In 1976, Thibert received a written reprimand from the
Superintendent of the Lindsay Jail for overturning an inmate's
bed and failure to file an Occurrence Report (Exhibit 70). This
appears to be an isolated incident (somewhat staledated) which
did not involve the striking of an inmate. In addition, the
Grievor received a written reprimand in 1979 for his participa-
tion in a three day illegal work stoppage which occurred in December
of that year. It is noted in passing that approximately 3,000
Correctional Officers received the identical letter.
Accordingly, the Board awards that all Grievors shall
be reinstated to substantially equivalent positions within the
Ministry. As stated previously, the finding of excessive force
was the result of the collective actions of all three Grievors.
In the circumstances, each Grievor shall receive a six month
suspension without pay. The Grievor, Thibert shall be compensated
for lost wages and benefits following the six month suspension,
after having made the usual deductions from compensation of any
and all income received from other employment in the interim.
33
The Grievor, Emil Jung, shall be reinstated to the
status of a probationary employee. Mr. Jung shall be compensated
for
all lost wages and benefits beyond the six month suspension
subject to the usual mitigation rules referred to above.
Because McGill was a casual employee at the time of
his termination, he shall be reinstated to the status of a
casual employee but without compensation.
There shall be no
loss of seniority credits for any
of the Grievors.
The Board shall remain seized of this matter in the
event that there are any difficulties with regard to the inter-
tation or implementation of this Award. Similarly, we remain
seized of the Thibert and Jung grievances in the event that the
Parties are unable
to agree upon the quantum of compensation.
34
The Board is grateful to both Mr. Benedict and Mr.
Ryder for their able presentations in this difficult and complex
matter.
DATED at Brantford, Ontario, this 11th day of December,
A.D., 1984.
R. L. Verity, Q.C. Vice-chairman
F. Taylor Member
A. G. Stapleton Member