HomeMy WebLinkAbout1982-0552.Asselstine.83-05-27IN THE MATTER OF AN. ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
, THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
For the Grievor:
For the Employer:
Hearings:
OPSEU (Ken Asse :lstine)
-And -
Gri evor
The Crowns in Right of Ontario
(Ministry of,Correctional Services)
Employer
J. W. S.amuels
B. Switzman
P. H. Coupey
Vice Chairman
Member
Member
G. A. Richards Grievance Officer
Ontarib Public Service Employees Union
P. Van Horne
Staff Relations Officer
Personnel Branch
Ministry of Correctional Services
January 24,' 1983
February 23, 1983 April 11, 18 & 20, 1983
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CONTENTS
INTRODUCTION
EVIDENCE CONCERNING THE INCIDENT ON MARCH 9, i982, '-
AND OUR FINDINGS
l-. The Seqinninq '.
2. The Blow
3. Immediately after the Blow
4. And later ~events .
5. The Board's Findings
ON THE USE OF FORCE IN THE HAMILTON-WENTWORTH
: DETENTION-CENTRE
1. ~The Rules. and Regulations
2. Application to the Incident on March 9,,1982'
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EMPLOYMENT RECORD OF THE GRIEVOR
CONCLUSIONS AND AWARD
LIST OF EXHIBITS z _ J
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4
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INTRODUCTION
The'grievor was a Correctional Officer 2 in the employ
of the Ministry,. serving at the Hamilton-Wentworth Detention
Centre, until September 28, 1982, when he was discharged for
using unnecessary, excessive, and unreasonable force against an ,. .
inmate, a Mr. W. Dalton, on March 9, 1982, and because cf tiis
unsatisfactory employment history, including a previous improper
use of force (Exhibit:l). ._ :
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The grievor argues that the Minis'try did not have ~just
cause for the discharge, and claims reinstatement with. full. com-
pensation, and removal of all corres,pondence 'from-his personnel
file relating to the discharge and investigation of,the incident
on March 9.
The hearing into th~is matter took five days for evidence
and argument. All of this has been reviewed at length. A list of
the exhibits filed with the Hoard is appended to this award. After
serious consideration, it seems desirable to set out here only those
facts which, in the end,. seem pertinent to the disposition of the
case.
EVIDENCE CONCERNING TH,E INCIDENT ON MARCH 9, 1982, AND OUR FINDINGS
1. The Seqinninq
The whole story begins with a curious disclosure. On
\ August 31, 1982, Mr. J. Q.tewart, Senior Assistant Superintendent a.t
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the Hamilton-Wentworth Detention Centre, was interviewing Mr. Dalton,
then an inmate at the'Toronto East Detention Centre, who had been
at Hamilton-Wentworth earlier in the year. The subject of the
interview had nothing to do with.the'grievor. At the.conclusion of
the interview, Mr. Stewart asked'Mr. Dalton if he had anything else
to.say about the Hamilton-Wentworth DetentionxCentre., hr. Dalton
responded that he had been "hooked" (that is, s,truckj by the grievor
in early March on his return from the gym. . .
On this-beginning! Mr;.Dalton has a different recollection.
His testimonywas that Mr. Stewart came to talk to him about the
incident. He said that Mr; Stewart had',prior knowledge of- the
business. In our view, Mr. Stewart' s testimony is to be preferred
and we accept that Mr. Dalton's hisclosure.'on or about August 31.
was the f'irst that any member. of Senior management knew'of the
incident in March. . .
Mr. Stewart thencommenced an-investigation into the
allegation of use of force, which resulted in the discharge of
Mr. Asselstine. He found that no one had submitted an Occurrence
RepOkC concerning the incident, but that on March 10; Mr. Dalton
had some dental~work,done and there.was an Acciden't and Injury
Report (dated March 9, 1982) in Mr. Dalton's file which ascribed
the injury to a fall iii the shower (Exhibit 19)~.- Mr. Stewart
satisfied himself that this Report had not~circulated through the
usual management channels, but rather found its- way to Mr. Dalton's
file directly. Mr.. Stewart proceeded to speak with' all persons
who might have been associated with the incident.
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Let us go back to March 9 now, and retrace the events
.as they were disclosed by the evidence at our hearing.
Mr. Dalton was a frequent inmate in various detention
centres. On this latest occasion, he had entered Hamilton-Wentworth
on January 14, 1982, en route ultimately to Warkworth Penitentiary
to serve a 3 l/2 year term for several convictions of "Break and
Enter" and "Extortion". He was well known, and liked, by correc- . .
tional officers (including the griever), who characterized him as
a friendly inmate, constantly seeking to establish a good relation-
Ship with.the Officers, whike maintaining.a good relationsh,iQ with
o,ther inmates. He and.the.grievor knew each other from meetings
outside the Detention Centre and while Mr. Dalton was in custody. _.
He admitted he.was given to horsep.lay, and he was known to raise,,
his fists to an officer (including.the.grievor) to suggest a
boxing match. Mr. Dalton is about six foot two inches in height
and would weigh about 190 QOUndS. These invitations to fight were
always treated in a joking fashion,, and-refused, and it appears
that Mr. Dalton never pressed the~point.~
The grievor stands 6 feet 6 inches and weighs 255 pounds.
He is a formidable looking~ man.
r On March 9, at around lo:50 AM,Mr. Dalton was with a
group of 14 prisoners being escorted from exercise back to the
dayroom at 4BR (Pod 48 Right). Mr. Dalton was not in hand-cuffs.
'.. They,came up the ramp with Mr. P. Martin,,in the lead (then a
correctional officer, and now with the York Regional Police Forces),
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and 8r. 3. Kazienko in the rear (then a new correctional officer~on
probation, 2nd now a Correctional Officer 2 at Hamilton-Wentworth).
At the fourth floor, the parade was let off the ramp and into the
fourth floor elevator lobby by Mr. Asselstine, who was on duty in
the 4C staff station situated near the ramp door. Now, with
Mr. Asselstine in the lead, the whole party Qroceeded the length
Of the elevator lobby to the door at the.end leading to the corridor _
to 4B pod. Mr. Asselstine opened the'door with his key. The door
opens into the elevator lobby. He then stood with his back against
the door and let the group pass'through. The last two were .Mr.
Dalton then Mr. Kazienko. To. here the-evidence is~ agreed. Now we
shave several stories on what follows.
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2. The Blow ~. _ .-
Mr. Dalton made-a.written-statement, takenby Mr. Stewart
when he visited the inmate at Warkworthon September 6, 1982 (Exhibit 7),
and testified before this Board; Several.versions of the events
emerge from this evidence. -In the written.statement; Mr. Dalton
-says simply that he was struck in the:face.by Mr.~.Asselstine. .In
examination-in-chief, Mr. Dalton-testified that, as he~went through
the door, Mr. Asselstine said something and when-he (Dalton) turned
around, the grievor hit him in the face with his closed fist. On
cross-examination., Mr. Dalton said first that he talked with Mr.
Asselstine as he passed through the door, then saw the griever's
fist up, jumped through the door and was hit before he could see
.the punch coming. Later in cross-examination, .Mr. Dalton said that
he slowed down as he went through the door because he saw the
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griever's fist up (and on reflection thinks it may have been up
as .the preceding inmate passed through too). Whichever version is
h'is real story, Mr. Dalton had Mr. Kazienko passed him and out in --
_' ,the corridor to 4B before the blow came: and Mr. ~Dalton had nothing
to offer the Board as the reason for this blow by the qrievor. From
Dalton's tale, it would appear that this was an act .without any
cause. He suggested no ill.will between himself and the grievor.
He testified that Mr. Asselstine had never hit him before. There . . . .
had been no conversation on the way down to exercise, and there was
no conversation giving rise to the incident at the time.
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The grievor testified-before the Board .and gave Mr; Stewart
a written statement in September 1982. (Exhibit 23). His story has
been consistent throughout. He says that, as Dalton approached to
go through the door to the corridor, Dalton assumed a boxing stance _ _.
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with his fists up, began to bounce about like.a.boxer fin a joking
fashion, and said "C'mon Asselstine, I can stake ya".. : The grievor
responded "Are you kidding?" as Dalton bounced with his fists up
through the door,~all the while facing the.grievor. Mr. ~Asselstine
then flicked.out his open right hand; -.In his testimony, but not in
'his written statement, the'.grievor testified that.he did not intend
'to touch Mr; Dalton. However, he~acknowledges that his hand did
contact Dalton's mouth. It is not clear from the grievor's evidence
where.Mr. Kazienko. was when.the blow came, but from,all the evidence
.before. the Bo,ard:'it does appear ,that Mr. Kazienko 'had passed on.
into the corridor to 4B. . -.
No one else saw the blow, so let us proceed to the events
immediately after.
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3. Immediatelv After the 310~
Mr. Dalton"s account of 'the events immediately following
the blow' is totally uncorroborated anhm.i-n:conflict with all the
other testimony. He said that the preceding prisoner, who. hadn't
seen the blow, now ~said.‘"I wou~ldn't let .him get away with that":
and that he (Dalton)~ was set to retaliate but:was restrained'by
two officers - Mr.'Kazienko who had seen the blow (as we shall
see, this officer denies seeing the blow an& denies doing ,anything .i . .
to restrain Mr. Dalton, because Mr. Dalton was treiting the whole
matter as a joke and of no consequence), and by Mr. Martin or some
other officer (but everyone else involved in the event testified Y
. that the only person aiound right.aiter the blow was Mr. Kaiienkol.
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The grievor testified that Mr. Dalton said "Holy shit, I :
should have been'deeking instead of ducking",'and that Dalton said
he'wasall right. Mr. Kazieriko came'.bver to enquire'what was going
on and was told "nothing". The erievor did not see any injury to
Dalton and Dalton proceeded, to the .4BR dayroom:
Mr. Kazienko gave Mr. Stewart a written statement (Ex-
hibit 21) and testified before the Board. From this evidence-, it
appears that Mr. Kazienko did not see the blow fall. He had passed
through the door following the other inmates, having noticed that
Mr. Dalton Stopped to speak with the grievor. He turned left down
the corridor to the 4BR area and,~ after walking some 15 feet, turned
around and~saw Mr. Dalton and the grievor. Mr.‘ Asselstine's right
arm wds extended and Dalton was8 stepping backwards as if he had
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been hit. !tr. Kazienko returned to the two-men a& asked what was
going on. 30th assured him that they were "horsing around". He
noticed that Mr. --. Dalton had his hanpd,to his mouth, that one of the .
teeth seemed quite loose, an,d that~there was a bit of blood around
the tooth. But he was assured by Dalton that all was fine. Neither
Dalton nor Asselstine seemed in a hostile mood, they were joking'
and friendly. In a written clarification to his statement, done on
September 9 after a lengthy meeting with Mr.. Stewart (during which . . :.
Mr. Stewart lectured Mr. Kazienko on the.def.inition of "assault"
unde~r the Criminal Code, and persuaded Mr..Kazienko that what he
had seen would be such an assault), Mr. Kaztenko gave further details
on the location of the incident, and said;~that he could not tell if ._ :.'"*.
Mr. Asselstine's hand was open or closed when Dalton was "assaulted".
The Board attaches no significance~to this word., - bu.t rather accepts
Mr. Kazienko's description of the events without the quasi-legal .., : _' : -
characterization of them. After making his enquiry,,and having
been assured that nothing of significance had occurred, Mr. Kazienko
proceeded'to the 4BR grill to ensure that all the inmates were I .:
returned. Mr. Kazienko does not recall anyone else in the vicinity
immediately after the.blow, except for Dalton, Asselstine and him-
self..
In his written statement, taken by Mr. Stewart on Septem- .,
her 14 (Exhibit lo), and in his testimony before this Board, Mr.
Martin said that he had preceded the inmates through the door into
the, corridor, to 48. He then walked down the corridor, bore right
aroi;nd a 45' corner, and positioned himself near an emergency button
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some 10 to 15 feet before the 4BR dayroom grill. There he stood
while/the inmates filed into the dayroom through the grill, which
was opened by the pod officer, Mr. P. Ivask. He did not see the
blow, nor did-he see the grievor and Mr. Dalton in the corridor
right after the blow. The inmates filed by him in order, and he
noticed a small trace of blood.-on Dalton's lower lip. He enquired
about the blood, and Dalto~n said "Nothing, nothing". And that was
Mr. Martin's 'entire dssociatipn with the events.. I
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4. And later ‘event:s
Ally the inmates retu.rned to the 4BR dayr.oom through the
grill held open by Mr. Ivask; 'He 'noticed nothing unusual and went
to record the return in his logbook '(Exhibit 12X:: In his written
statement taken by Mr. Stewart (Exhibit 201, and in his testimony ._ :
before the Board, Mr. Ivask said that a few mqments later, Mr. Dalton
came out of the washroom to the grill. Mr. Ivask asked him what
he Ganted. Mr. Dalton replied "Nothing", but was holding in his
hand a tooth broken off his denture. Mr. Ivask asked what happened
and was told that the inmate had been horsing around with "Kenny". . .., ,-:
Mr. Dalton'seemed unconcerned and Mr. Ivask let the matter slip.
Before his lunch, Mr. Dalton was on clean-up in the dayroom and
took a shower around 1:00 PM. Shortly after this, he came to the
grill again and told Mr. Ivask he would have trouble eating because '_
of h
that
his
,i s broken denture. In his written statement, Mr. Ivask said
he then asked Dalton what he wanted him (Ivask) to do "due to
( Dalton's) previous 'indecision". However, in his testimony to
the Hoard, Mr. Ivask was sure that he had not connected the twc
~on:'ersati@~ns :;ith ;Yr. Dalton and t:iat when the .tiio men then
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QreQared the Accident and Injury Report (Exhibit 191, which would
enable Dalton to receive~medical treatment, Mr. 1vas.k was prepared
to accept the inmate’s statement that the problemwasdue to a fall
in the shower. So-this was the explanation given by both men in
the Report. In his written statement, Mr. Ivask said:
Even th.ough I knew-that this statement differed from his initial earlier state-
ment to me, :I completed the accident and
injury report according to what he, reported
in the *fall in the shower. I.t- was not my
intent to withhold information but rather,
I did not know precisely what had occurred
between I/M Dalton and "Kenny" and I/M
Dalton showed no concern re the broken
denture except that he Jijuld have difficulty .eating.. My.sole concern was to ensure the
incident was on record rather than even
contemplatin~g future repercussions over the
matter due to I/M Dalton's general lack of
conc.ern at that time. ~..~.
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And later in the day, Mr. Ivask told 'the grievor that an Accident
and Injury Report had gone in concerning Dalton's broken tooth.
Later in the day, Mr. Asselstine testified that he saw
Mr. Dalton again and was shown <he tooth broken off the plate. The
grie;or asked how it had occurred and was told by Mr. Dalton that
he fell in the shower.
On March 10, Dr. J. Bakty attended to Mr. 'Dalton. He
arranged for the repair of the inmate's plate, to replace the tooth
broken off, and he pulled out a natural tooth (which was causing
pain) and arranged for an addition to the plate to replace this
tooth (Exhibits 4, 5 and 6 and Dr. Bakty's testimony to the Board).
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All of this was done at the Ministry's expense. Dr.'Bakty did
not enquire into the circumstances leading up to the request for
_. treatment. He recalled no signs of violenc&and testified~.that--- l--
he would have recorded such observations if he did see signs of
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violence) and could attribute the prOblemStO other causes. In
particular, he testified that a tooth could break off the upper
plate during normal biting.
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5. The Board's Findings . :
Mr. Dalton,said, in his wri-tten statement and in testimony
before this Board,
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that he did not report the assault because he
was afraid of retaliation from the correctional'officers while he
was still in custody in Hamilton-Wentworth. In our view, his conduct
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particular), Martin, Ivask and the grievor, lead more likely to
the conclusion that the whole affair was horseplay. Either we .
believe that the grievor made an unprovoked assault on a friendly
prisoner (with whom he maintained a good relationship even afterwards),
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or we believe that Mr. Dalton and the grievor engaged in horseplay
and the injury resulted. The onus is on the Ministry to prove that
Dalton's testimony is truthful, and the evidence as a whole falls
far short.of discharging this onus.
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This Board finds that the evidence is insufficient tom
show that Hr. Asselstine intentionally struck Mr. Dalton on March 9, ._ . '.
1982. Rather, it appears that the incident arose in a friendly
situation, involving no hostility and no exercise Or attempted
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exercise of authority by the grievor. Given Mr. Dalton's reputation
for initiating horseplay with the correctional officers, it is
quite likely that:Mr. Asselstine's version fthe events is.much _-
closer to the truth than Mr- Dalton's. We are satisfied that,. .~
immediately after the incident, both men wished to keep the whole
affair to themselves. However, Mr. Asselstine knew or should have .‘
known that his blow miy well have resulted ins Mr. Dalton losing
a tooth. This knowledge would come from the bit of blood apparent
in Mr. Dalton's mouth or on hzs lip immediately after the incident
(seen by Messrs. Kazienko and Martin),' the information from Mr. Ivask
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concern$ng the Accident and Injury Report, and the tooth in Mr.
Dalton's handlaterin the day. The evidence from Dr. Bakty, .the ~~' ,. . .'
dentist who treated Mr. Dalton, indicates that the tooth may have j -..
been dislodged by an insignificant blow, and there is insufficient 5.
evidence before this Board to justify a finding that the griever's
contact was a severe one, or that the grievor fully intended to-
strike Mr. Dalton. Bearing~all df~ this in mind, we find-that the
grievor intentionally stiuck out at Mr. Dalton, butt without intending
to make contact. This was an act, of "horseplay".
We turn now to's cdnsideration of'the lkgal context within
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ON THE USE OF FORCE IN THE HAMILTON-WENTWORTH DETENTION CENTRE
1. The Rules and Regulations .-
The use of force in the Hamilton-Wen~tworth 'Detention
Centre is governed by four instruments, and there is no doubt that
the griever knows these rules and regulations.
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Section 7 of the Regulations pursuant to the Ministry
of Correctional Services Act provides (Exhibit 24):
(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;
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
circumstances of the case. I
Standing Order Number 22, established for this institution,
provides in part (Exhibits 25): : .:
USE OF FORCE
There are times- when.it becomes necessary for correctional staff. to use force in dealing with
inmates, -this may occur wh,en an inmate is doing
harm to himself, other inmates, or staff. When
this occasion arises, the following rules shall
apply:
(1) The officercsj s.hall use no more force than
is necessary to bring about the cessation of any overt act or assaultive~ behaviour.
(2) The officer(s) involved shall make a full written report to the Superintendent stating
the inmate(s) name(s) involved, circumstances surrounding the incident, injuries to inmate(s)
or staff (if any1 and the reason(s) it was
necessary to 1:s. force.
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) When force is used the Chief Medical Officer or nursing staff will carry out a medical
examination as soon as practicable to determine
if injury occurred and render the necessary.
medical treatment.
(41 When force is -used on an, inmate, an Accident
and Injury Report (Form 9690) will be initiated.
In a letter 'from the then Deputy Minister of Correctional
Services, Mr. L.R. Hackl, dated July 25, 1968, the following guide-
ante is provided, and each correctional officer acknowledges ,: . .
receiving a copy of this document (Exhibit 26 shows Mr. Asselstine's
signature, indicating he has read ardunderstood the.letter):
Re: Assaults on Inmates
It hascome to my attention that. no written instruc- tions have ever been.issued to City and County Jails
specifically prohibiting assaults oninmates.by
employees, nor apparently has there been anything in writing indicating. the penalties for such assaults.
You are therefore directed to inform all employees
of your institution that assaults on inmates involving
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. . '.
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There are, of course, occasipns when it is necessary
for employees 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 inmates 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 compiete written report of the incident will be made and submitted,
through the usualchannels, to the Governor..
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I realize'that such instructions are not necessarv for the great majority of your staff who would not
.entertain the.practice'of this form of assault in
'any case. However ,-,so tha,f no one ,cah be in any
doubt about the consequences, you are to reproduce
this letter and have every employee read and sign
a copy. The signed copy should bqplaced on his
or her file. Future employees should be required
to sign a copy as part of the induction routine.
In a letter to staf-f at Hamilton-Wentworth,'dated May 5,
1981,;Mr. Phillipson, the Superintendent, has provided the following
guidance, and each correctional officer acknowledges that he has
read and understood this letter [Exhibit 27 shows Mr. Asselstine's
acknowledgement): -. *.-
Re: Use'of Force in Ontario' Correctional Institutions
. Upon your appointment to'the Ministry of Correctional
-Services as:a Correctional Of.fic,er or 'institution employee,, the Criminal~Code of Canada (Section 2)
designates you as a-Peace Officer while you are on
duty. ,To enable.you to functi.on as a correctional
employee, the Criminal Code empowers you to use force in the execution of your duties. The law
equally.holds you criminally~ responsible for any
excessive or improper.use of this authority. .
Regulation 7, Subsection 1, made under the Correctional
Services Act stipulates some circumstances when force
may be necessary, namely:
(a) to enforce discipline and maintain order within the institution
(b) to defend yourself or another employee
or an inmate from assault
lc),, to control a rebellious or disturbed .inmate
(d) to conduct a search.
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 thre,at.QoSed by the inmate and all other circumstances of the case.
The Regulation further provides that where an employee uses force against an inmate, the employee
shall file a Comprehensive written report with the
Superintendent indicating, the nature of the threat
posed by the inmate;and all oth%r circumstances of
the case.
In the event thatany evidence exists that you have
used excessive or improper ,force or knowingly
assaulted an inmate, the matter may be dealt with
either judicially or through ministerial proceedings, depending u~pon .the severity of the incident.
It is also instructive to consider the definition of . .
"assault" in the Criminal Code. Section 244 provides:
(b
(a) without the consent of another person or with
consent, where it is obtained by fraud, he
applies force-intentionally to the person of
the other, directly. or indirectly:
,) .he attempts or threatens, by an tact or gesture
A person commits an assault when
~to apply force-to.the person ~o:f the other, if' he has or causes the other to believe UQOn
reasonable grounds that he has-present ability to effect his purpose; qr ,.. .
Cc) while openly wearing'or carrying a weapon or
.an imitation thereof,, he accosts or impedes another person and begs.
It is clear that this definition involves the intentional appli-
cation of force. '
Similarly, in our view,.the rules and regulations con-
cerning the use of force at Hamilton-Wentwor~th contemplate the
intentional application of force. The ~rules and regulations deal
with use of forces. Force can only be used intentionally by a
correctional officer. An unintentional applicgtion of force is
not a use of force.
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Mr.
Phillipson testified concerning these rules and -
regulations and, suggested that every time a correctional officer
touches an inmate, an Occurrence Report should be filed, in order
to protect the officer and the institution from later complaints
of assault by an inmate. Evidence from other 'correctional officers,
with long experience and.uninterested in. this case, casts some
doubt on whether or not the rules are understood by the correctional
officers to be as strict as this. In our view, the written rules _ ' -
and regulations themselves do not need to be interpreted in such
a strict fashion,. For example, if a.correctional officer pats an _..
inmate on'the back to congratulate him~on the birth of a child,
one would not expect these wiitten'ruies to require the filing of _
an Occurrence Report to avoid the'pdssibility of a later complaint
of assault. _ This would be a normal human contact, and not something
related to the inmate/officer relationship within the institution. : I
It.may well be also that a gentle guiding hand to show an inmate
the way to the door would not-require a written Occurrence keport
under these written rules. However, it does appear that horseplay,
-: ; involving intentional~physical contact with inmates;.is.discouraged.
Both the Superintendent and the Senior Assistant Superintendent made
clear management's viewpoint on this. Messrs. F. Preston and -
C. Boles, both with significant experience as correctional officers,,
testified that they have often b~een'invited by M'r. Dalton to engage
in physical horseplay such'.as shadow-boxihg and they always refused,
counselling the inmate not to do this.
2. Aoplication to the Incident on Warch 9, 1982
We have found that the evidence was insufficien: to show
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Mr. Phillipson testified concerning these rules and
regulations and~ suggested that every time a corre~ctional officer
touches an inmate, an Occurrence Report should be filed, in order
to protect the officer and the institution from later complaints
of assault by an inmate. Evidence from other correctional officers,
with long experience and,uninterested in. this case, casts some
doubt on whether or not the rules are understood by the correctional
officers to be as strict as this. In our view, the written rules _
and regulations themselves do not need to be interpreted in such
a strict fashion.. For example, if a,correctional officer pats an
. inmate on'the back to congratulate him~on the birth of a child,
one would' not expect these written ruies to require the filing of
an Occurrence Report to avoid the'possibility of a latter Complaint
of assault. \ This would be a normal human contact, and not something
related to the inmate/officer relationship within the institution.
It'may well be also that a'gentle guiding hand to show an inmate
the way to the door would not-require i written Occurrence Report
_.. under these written rules. Howevei~,' it does appear that hOrSeplay,
I: i involving intentional.physical contact with inmates,-is'aiscouraged.
Both the Superintendent and the Senior Assistant Superintendent made
clear management's viewpoint on this. Messrs; F.~ Preston and
C. Boles, both with significant experience as'correctional officers,,
testified that they have often b~een'invited by Mar. Dalton to engage
in physical hOrSeplay such as 'shadow-boxing and they always refused,
counselling the inmate not to do this.
2. Aoolication to the Incident on March 9, 1982
We have found that the evidence was insucCicient to show AL
- 20 -
the evidence su'fficient to show that there was a violation of the
rules and regulations. We fknd,.thatno -culpable use'of force was
proven because the evidence was tinsufficient to show that the
grievor intended to strike the inmate.
In sum, the griever should nqt have engaged in horseplay
as he-did, and. he should have reported the incident. He merits
discipline for ~this c.on~duct., . . ~.
The issue then becomes what discipline- is reasonable in
the circumstances,. and it‘is necessary to look at the evidence ..~ -
concerning the griever's employment record.
:
EMPLOYMENT RECORD OF THE GRIEVOR i
The proven. evidence before this Poard concerning the
,grievor's employment record discloses the. following History:
1. The grievor joined'the institution in' September 1977.
.~
2 * On several occasions, Mr. Phillipson has counselled
the grievor on the~use oft force and the need for a
correctional officer to be'a role-model for inmates.
-
3.. In December 1979, the grievor was reprimanded for
part.icipating in an illegal work stoppage (Exhibit 281.
4. The grievor was placed on Mandatory Medical. Certi-
ficates for six months on September 2, 1980, because
of management's conce.rn about his attendance record.
This meant that the grievor~ had to provide a medical
. .
- 20 -
the evidence sufficient to show that there was a violation of ,the
rules and regulations. We find,.that'no-culpable uses of force *ias
proven because the evidence was insufficient to show that the
grievor intended to strike the inmate.
In sum, the griever should nqt have engaged in horseplay
as he-did, and he should have reported the incident. He merits
discioline for ,this c,on.duct,.. . . ,.
'_ The issue then becomes what discipline is reasonable in
.
the circumstances,. and it is necessary to look at the evidence ._
concerning the grievor's employment record.
. .
EMPLOYMENT RECORD OF THE GRIEVOR i
The proven. evidence before this Board concerning the
,grievor's employment record discloses the following history:
1. The griever joined'the institution in September 1977.
2 * On several occasions, Mr. Phillipson has counselled
the grievor on the- use of' force and the need for a
correction'al. officer to be‘a role-model for inmates.
3.. In December 1979, the grievor was reprimanded for
participating in an illegal work stoppage (Exhibit 28).
4. The griever was placed on Mandatory Medical Certi-
ficates for six months on September 2, 1980, because
of management's conce.rn about his attendance record.
This meant that the grievor~ had to provide a medical
t.
-22-.
Qerformance from him in the future. The five-day s;ispension in
‘1981 should have told the griever that at least one must be careful
‘to file'a report 'concerning any use of force which could iater be
characterized as an assault on an inmate.
._
CONCLUSIONS AND AWARD
The grievor was discharged for three reasons:
. .
a. an improper use of force against an inmate;
b. failure to report the incident, and
C. an-employment record which was perceived'
to b.e very ~Qoor by then.Ministry.
This E)oard finds that the griever did engage in conduct
which was improper, though it could not be characte.rized strictly
.as a use of force. As well, the.grievor did fail to'repor,t the
incident, though it resulted,in injury to an inmate, and the griever
should have known ~of the injury and the need .for .a report.
The difficulty in this..case is that. othersknew or should
have known of the need for a. report and no. one else was.seriously
disciplined. Mr. Ivask received_,+ one-day suspension for filing
a false Accident and Injury Report. Mr. Kazienko knew that there
had been physical contact between the griever and Mr; Dalton, ,and
that it resulted in some injury to Mr. Dalton, yet he received
no disci'pline for failing to file a,report. An employer must show
t.
-22-'
performance from him in the future. The five-day s;isQension in
‘1981 should have told the griever ,that at least one must be careful
'to file a report 'concerning any use of force which could later be
characterized as an assault on an inmate.
._
CONCLUSIONS AND AWARD
The grievor was discharged for three reasons:
. .
a. an improper use of'force against an inmate:
b. failure to report the incident, and
c. an.employment record which was perceived
to be very.poor by the~,.Ministry.
This Board finds that the grievor did engage in conduct
which was improper, though it could not be characterized str,ictly
as a use of force. As well, the griever ,did fail to'reQor,t the
incident ,' though it resulted~,in injury to an inmate, and the griever
should have known .of the injury and the need for .a report.
The difficulty in this case is that othersknew o? should
have known of the need for a, report and no. one else was seriously
disciplined. Mr. Ivask received,,a one-day suspension for filing
a false Accident and Injury Report. Mr. Kaz'ienko knew that there
had been physical contact between the griever and Mr; Dalton, -and
that it resulted in some injury to Mr. Dalton, yet he received
no disc?pline for failing to file a.report. An employer must show
-24-.
from employees who may abuse them,. _ 9ut the Ministry has not proven
that Mr. Asselstine intentionally used.force against Mr. Dalton.
Hence, the section is not applicable here.
We reserve our jurisdiction to decide upon the matter of
compensation if the parties are unable to settle upon this them-
selves.
”
. . _.”
Done. at London, Ontario, this 27th day of May , 1983.
2: 1400 7: 4300
.
"I concur, subject to the attached addendum" B, Switzman, Member -
"I concur in the reinstatement but
-dissent in,the length of the substituted penalty"
.P.;H. Coupey, Members.
- 24 -
from employees who may abuse them,... Put the Ministry has not proven
that Mr. Asselstine intentionally used.force against Mr. Dalton.
Hence, the section is not applicable here.
We reserve our jurisdiction to decide upon the hatter of
compensation if the parties are unable to settle upon this them-
selves.
. . _.-
Done. at London, Ontario, this
tith day of M=Y , 1983.
"I concur, subject to the,
attached addendum" B, Switzman, Member, -. -_
"I concur in the reinstatement but
-dissent in the length of the substituted penalty"
'P.:~H. Coupey,. Member>
2: 1400
7: 4300
.:. i;r
.’ /.,
26.
27.
28.
29.
30.
31.
Letter on use of force, July 25, 1968
Institutional Nemorandum-, tiay 5, 1981 ._
Memorandum.~concerninq illegal wo;k stoppage, December 13, '1979
Memorandum concerning attendance and need for Mandatory Medical Examination, with attachments
Letter concerning discipline, February 4, 1381
Award in GSB 276182
L
..~ _ ‘_.
.: -
.
. .
:
: :
IN THE MATTER OF AN ARBITRATION
BETWEEN: THE CROWN IN RIGHT OF ONTARIO
(MINISTRY OF, CORRECTIGNAL SERVICES)
- and - .~
ONTARIO PUBLIC SERVICE BeHPLOYEES UNION
AND IN THE MATTER OF THE GRIEVANCE OF XEN~ASSELSTINE (.#S52/82) .: . .
ADDENDUM
I have joined in the award of the chairman. However, I
would like to briefly comment on three matters of concern.
In reaching its decision, the Employer relied upon an
extensive number of entries in the grievor's personnel file. Many
of these matters were allegations involving the grievor's conduct,
to which he had replied and given adequate explanations. Yet the
Employer had chosen not to act upon any of these allegations, but
had merely continued these notations in Mr. Asselstine's file.
In arbitral jurisprudence it has been held that where the
Employer had relied upon an improper ground, a board of arbitration
could very well mitigate if not quash any penalty that the Employer
had imposed. As one of the grounds. for its action was the past
record of the grievor, and as the record presented to the board was
replete with unsupported.allegations, then on this basis alone, the
discharge penalty imposed could have been mitigated. However,.as
there was no finding of fault in regards to the main ground of
improper use of force/then this board did not have to delve into
this aspect of the case.
However, now that these allegations have been aired, it is
hoped that the Employer would cleanse the grievor's personnel file
. . . . . . . /2
- 2 -
of these unwarranted.and improper notations.
Secondly, while.not expanded upon in the chairman's award,
it is clear that no evidence was presented to the board that
Mr. Phillison's expectations were ever communicated directly and
explicitly to the employees. Certainly no rule, circular or
regulation to that effect was ever posted or given to the employees. ._
Finally, I must query the~extremity.of Eir. Phillipson's
expectations of absolutely no contact between inmates and correctional
officers, except as contemplated by Section 7 of the Regulations
(Exhibit 24). While I can appreciate the administrative and legal
concerns of the Superintendent, I cannot believe that ally relationships
in an institution can be reduced to institutionali~zed,relation<hips.
Human contact will of necessity continue and I cannot be.lieve that
any attempt to abolish them will~improve correction'al officer/inmate .
interraction.
Respectfully submitted
Brian Switzman
.-
F a ._., *,
,,‘. ‘S,
PARTIAL DISSENT . .
I concur iith the view of the majority of the Board that the Ministry has not proven that Mr. Asselstine intentionally
used force against Mr. Dalton. and, therefore, should be re-'
instated with a suspension substituted for the earlier penalty.
In studying the Award in full, it becomes apparent..that the
grievor received a ten-day suspension for "failing to report the incident" and that his act of "horseplay" that resulted
in an injury to an inmate, was not given consideration in i
determining the duration of the suspension.~
The Board found that ?the grievordid engage in conduct that
was improper"; and "the grievor did fail to report the in-
cident, though it resulted in an injury to an inmate, and
the grievor should have known of'the injury and the need for
a report"; and "in,sum, the grievor should not have engaged
in horseplay as he did, and he should have reported'the
incident. He merits diacipline,for this. conduct".~
It would appear from the foregoing that the grievor was guilty
qf two distinct.violations for which.~discipline would be
appropriate. However, it appears that. the ten-day suspension was
for failing to report the incident and that the ,act of horseplay
was not given separate considerationwhen determining an approp-
riate substitute penalty.
Taking this into consideration, as well as the grievor's. em-
ployment record, I would have found that a suspension of at
least thirty days would have been appropriate for the offences
committed.
"P.H. Coupey"
June 1983
Member
Grievance Settlement Board