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HomeMy WebLinkAbout1983-0052.Bedeau et al.83-12-0552/83, 112/8!, 53/83 54/83, 114/83, 56/83 57/83, 116/83, 117/83 55,'83, 118/83, 119/83 IN THE MATTER 0~ AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Victor Bedeau, Joe D'Andrea Mike Fitzwilliam, Thomas Frederick Gaston Robert Gordon, Stephen Alexander Lonsdale) Before: Grievors - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer E. B. Jolliffe, Q.C. Vice Chairman H. L. Robinson Member E. R. O'Kelly . Member For the Grievors: P. J. J. Cavalluzzo, Counsel Cavalluzzo, Hayes & Lennon Barristers & SOliCitOrS D. Bloom, Counsel Cavalluzzo, Hayes & LennOn Barristers & SOliCitOrS For the Employer: J. F. Benedict, Manager, Staff Relations Personnel Branch Ministry of Correctional Services . .-;; / / (1: ’ ,t - 2- DECISION The grievances of six employees, referred to arbitration in ~March, 1983, were heard together on-11 days, commencing May 20 and ending July 15. All six complain against their dismissal by the Ministry of Correctional Services following its investigation of an incident on December 7, 1982, when serious injuries were suffered by Giuseppe Stalteri, an inmate at the Metropolitan Toronto East Detention Centre. There were four charges against each gricvor. The six employees had also grieved against their suspensions in December when the investigation was pending. * Hearings wer.e consolidated by consent of the parties. The Board heard the testimony of 21 witnesses called by the employer's representative and seven witnesses called by-counsel for the grievers. All proceedings were transcribed by a Court Reporter, as authorized by the Board, the conditions being that copies be supp'lidd to the employer and members of'the Board's panel as well as to counsel. The transcript is in 11 volumes totalling 2108 pages. Eighty-four documentary exhibits were filed and admitted into evidence. The unusual bulk of the material in this case was of course due to the fact that 12 grievances of six different employees required consideration. 4 ‘i: - 3' - Unfortunately, this is a matter in which few of the crucial facts are not in dispute. Moreover, the credibility of several employer witnesses has been challenged, and it is necessary to assess their testimony and make findings of fact. Finally, it must be decided whether the case against the grievers has been proved on the balance of probabilities. This is a civil proceeding, nota criminal prosecution, but the matter is of such gravity that there must.exist clear and com- pelling evidence to support the employer's allegations before it can be concluded that a dismissal was for just cause. Th'e . . Board therefore has a duty to review in some detail the evidence in respect of each-.grievor. Four grounds for dismissal were set out .in a letter to each griever from the superintendent of the M.T.E.D.C., A.J. Dunbar, dated January 12, 1983. They were all two-page letters in the same language. The letter addressed to the griever R. Gordon is Exhibit 2(B), of which the significant parts are as follows: - . . . you were required to attend a meeting at 1430 hours on 'Ihurs- day, December 30, 1982, in the Main Boardroom 2001 Fglinton Avenue East concerning the following allegations against you: -4 - (1) Participated in the use of excessive force on inmate Stalteri, G. (2) .Failed to comply with Sec.7(2) of regulation 243/79 tier M.C.S. act in that you failed to submit a full and factual report consistant with the requirement of that regulation. (3) Failed to comply with Sec.22 of the M.C.S. act in that you withheld, concealed and/or refused to furnish information required by an inspector for the purpose of investigating the alleged use of force by staff on inmate Stalteri, G. (4) You violated your position of trust as a correctional officer by your actions related to this incident. . . . . . . . On your behalf, Mr. Campbell made some preliminary objections I< with respect to proceeding with the'rreeting Thursday and indicated you were not prepared to respond to the allegations cited at the present time. You were given every opportunity to respond to these allegations; however, you declined to do so and left the meeting. . . . . . . . Therefore, this is to advise you that I have carefully considered, in your absence, all of the evidence available with respect to the allegations against you and it is my finding that these allegations~ are substantiated. As a Correctional Officer and Peace Officer you have a special responsibility to ensure the safety and security of the inmate population. You are required to comply with Ministry regulations and procedures and uphold the laws of the country. Your behaviour in this situation has shown a blatant disregard for your respon- sibilities and you have abused your position of trust. Your conduct can only be viewed by the Ministry in the most serious terms and warrantsyourdismissal from employment for cause under the Public Service Act. - 5 - In addition, with respect to allegation #3 I must pint out that Section 22 of the Ministry of Correctional Services 'Act states in part: '1. . . the Minister may and has just cause to dismiss any employee of the Ministry who obstructs an inspection or investigation or withholds, destroys, conceals, or refuses to furnish any information or thing required by an inspector for the purpxes of the inspection or investigation." Therefore, in accordance with the authority delegated to me under Section 22(3),of the Public Service Act and Section 22 of the Ministry of Correctional Services Act, you are hereby dismissed from employment effective immediately. I would pint out that my decision in this matter is separate from, and not influenced by, the criminal charges currently panding against you. There was much evidence in relation to the first three allegations-specified in the letter. The fourth allegation is of course a composite charge arising out of the other three. The central issue is whether each griever participated in,the use of excessive force on the inmate Stalteri. That .i issue must be resolved before others. The detention unit known as 5CW is located at the west end of the fifth floor in the institution. It is used principally to accomodate prisoners who are often termed "heavies", either because of their records and reputations or -6- because they are awaiting trial on a serious charge or awaiting transfer to serve a sentence of two years or more in a federal penitentiary. Naturally the unit is regarded as one which can give rise to special problems, including violence. In December, 1982, it housed 21 or 22 inmates in 10 cells. In addition to the cells there is a "day-room," containing lunch tables, benches and a television receiver. At the south east 'corner of the day-room there is also a shower-room. On the south side is a door into the corridor. It has a grille through which an officer can view most of the day-room. To the eastiis a matching unit, 5CE, with similar facilities. Between SCW and 5CE correctional officers have a .small office. Inmates spend most daylight hours in the day-room but of course they are locked in their cells at night. The two officers assigned to SC have possession of keys, usually kept in their office. When one officer enters a unit for any reason the other officer must remain outside at the grille, keeping watch on whatever happens within. Beside the door is a buzzer used to sound an alarm and summon help, a procedure known to the staff as a "code." - -7- The Initial Scuffle or "Fight" On December 7, 1982, the day shift officers assigned to 5C were Dorianne Tennant and Billy Tucker. Both had the rank of Correctional Officer 2, with two or three years' exper- ience. At about 1.30 p.m. they were doing some paper work in the office just off the corridor when they heard unusual noises coming from 5CW. Tucker investigated at once. Through the grille he saw two inmates on the floor near the north side of the day-room, scuffling or fighting. According to him, he * recognized the larger man, David Baxter, who was on top, striking the smaller-Oman: both were holding, wrestling and using their fists. (Transcript, pages 611-612) Tucker "yelled to them.to break it up," but they continued. Crowded around were about 10 other inmates who ignored Tucker's order to "stand back," page 614. When Tennant arrived, she gave a similar order to the two fighters, with the same result. She then pressed the buzzer, summoning help, page 614. The first reinforcement to arrive was Eric Proctor, assigned that day to 5A --- on the same floor. When Tennant I ; . -8- opened the door, Proctor and Tucker entered the day-room and stopped the fight. Tucker restrained Baxter and they withdrew to the north west corner of the room, near Baxter's cell. Proctor seized the smaller man, Giuseppe Stalteri, and began to move him toward the door,,where. Tennant had remained, pages 615 - 618. Tucker had less difficulty-with Baxter than Proctor had with Stalteri. Tucker and Proctor are tall strong individuals. In his testimony as the employer's second witness,, Stalteri told an entirely different story. He said "We weren't fighting." He denied that Baxter threw any punches. Also: "we weren't rolling on the ground when the guards came in," page 71. As for the "fight,"-he said, "me and another inmate, we were wrestling, wrestling on the ground, you know, just circling around, ,wrestling," page 41. He denied hearing an order to stop, and explained: "Somebody said 'the guards are coming,' so we split up," page, 72. When the first guard came in, Baxter was on one side and he on the other: "He was walking that way, I was walking the other way," page 74. And again, "we stopped before they told us to stop..... when I- saw the guards, that's when I stopped. I got up and walked away." page 75-76. . . . “/ ,c - 9 - The Stalteri version of the "fight" is irreconcilable with that of any other witness. His credibility will be dis- cussed after reference to his testimony in respect of subsequent events. It was impossible for either party to call Baxter as a witness; he died in a Toronto police station on April 1. There has been no suggestion that his death was connected in any way with the events of December 7. Stalteri has not com- plained of any injury by Baxter. What he said to nurses and- doctors on his return to the M.T.E.D.C. December 9 is recorded in the Ministry's Health Care Record (Physician and Nurse Treatment Record) page 2 of Exhibit 49 as follows: Cn December 7/82, be claims that he was "fooling" with another inmate before being "attacked" by several guards. Not sure if guards thought he was fighting the inmate or not. There is testimony by Dr. Dallas Grogan that Baxter had sustained a fractured left wrist on July 3, 1982, that it was in a cast until the end of August, that he was given an anti-inflammatory drug and fiornal pills for the relief of pain, and that recovery was slow. Dr. Grogan said, however, that "to my knowledge there was nothing wrong with his right wrist," .I ,, transcript pages 1100 - 1107. There were abrasions on Baxter's back, possibly caused by Stalteri , but evidence is lacking that Baxter inflicted any significant damage on Staltieri. Stalteri's Injuries Giuseppe Staltieri is a well-built man, 31 years old, of medium height and weighing about 69 kilograms. On December 7 he was in theM.T.E.D.C. pending trial on several charges, Exhibit 40. On May 20, 1983, he testified that he was then awaiting transfer from the Don Jail or another local detention centre to a "federal institution," presumably a penitentiary, page-S?. The first person to identify Stalteri's injuries was Susan Brandham, a registered nurse (working out of an agency) who had been called on from time to time to serve for one or more shifts at the M.T.E.D.C. when summoned. Shortly after 1.30 p.m. on December 7, she found Stalteri lying on the floor of the corridor, 15 or more metres east of the 5CW door, close to the SC office. As Miss Brandham is one of few independent wit- nesses, parts of her testimony must.be quoted from the transcript at pages 1114 to 1119: %‘: ,, ‘I) . - 11 - Q- Can you tell us, firsthand, what you know of this incident, this matter... speak slowly? A. We had just returned from our lunch hour, and we were going up to the floor to give out medications, and an announcement came over the PA system, and it said for the nurse to report to 5B. Well, the other girls~ were busy, so I said I would go, so I went up to 5B on the elevator. I looked around, and there was nobody there.. . . . - And I looked to. the right, which was the C section, and I saw people standing around. I walked over, and on the floor, in front of the guard's office, I saw the inmate lying semi-prone on the floor, or side-lying. Q: Did you recognize any of these people who were standing around? A. No sir, I didn't. After that I took a quick glance at the * inmate, and I noticed that his.right eye was beginning to swell, the eyelid itself, and the white part of the eye was bloodshot. I noticed that his nose was very swollen, and there wasatrickle of blood coming-from it. I also noticed that he had quite a gash, or chunk, out of his bottom left side of his lip. I noticed on his forehead, which I thought at first glance were bruises, but then it looked liked magic marker, or shoe polish, or whatever, .on his forehead. It wasn't a bruise. I .then asked the inmate if he hurt anywhere else, and I felt around his ribs and his abdominal area. Q. Did he respond to you? A. His answer to me was "What time is it? Where am I? What happened?" and he seemed rather disorientated, at the time, because he kept repeating this. While I was observing him, I took his pulse, which was a bit rapid. I looked at his pupils, before that, and they were within normal limits..... Then I asked what happened, and I had no response. Q. Who were you asking that to? . . . A. Well... anybody. .- Q. Were there people there? A. Well, the people were standing around... the guards, and then... , - 12 - 9. Oh, there were some guards there, were there? A. They were sort of in, like a circle... semi-circle. Q. Okay, and... A. And I had no response, and then I asked who was on the unit, and again, no response, and then Mrs. Karklins, the head nurse, was behind me, and she had arrived, ati she had asked if we could have a wet towel, and one of the guards said "Go ask his buddies." So Mrs. Karklins went over to the,inmates and got a wet towel. When Mrs. Karklins arrived, a wheelchair arrived at the same time. I don't know who brought it;, but it was there. So I went to lift the patient up, and he seemed not too bad, at the time, and one of the guards assisted me. I took him down in the elevator to the nursing station. Mrs. Karklins asked me if I would take his blood pressure, which I did. Q. Is this the second time? A. No, it was never taken. Just the pulse was taken. Q. Oh, I see. 4. It was taken, and we checked him over again... pretty well what I had done on the floor. We stopped the bleeding of his lip and his no&, and as far as I know, Mrs. Karklins sent him to the hospital.. Q. When you were up on the 5th floor with Staltieri, and you had some Correctional Officers were there,(sic) any idea how many were there? A. Oh, I would say about six or eight..... They were standing around the inmate, in a semi-circle, but I saw belt bu'ckles. I was on the floor, so I don't really know how many people were there. THE ARBITRATOR: You went down on‘your knees, I take it? THE WITNESS: Yes, because the inmate was lying on his side, and I looked at him, originally, and then I sat him up, and I observed what I have just told you. THE ARBITRATOR: Did he seem to be conscious, or semi-conscious? THE WITNESS: He was conscious, but he was dazed. .I , - 13 - At the nursing station the witness Brandham made entries in the M'edical Log, Exhibit 66. The second entry at page 97 was as follows: Inmate kept asking what happened ard hat time it was. ashen nurse asked what happened there were several guards around and no info was offered, volunteered. After the entry the nurse placed two exclamation marks. Asked to explain them, she said, page 1120: Well, I guess I was stunned. You know, I asked a question, and everyom stood there like tree trunks, and I asked who was on the unit, ard again, you know... kut I guess you are not supposed to ask things like that, there. I don't really know... hit that's my frame of mind at the time. Cross-examination opened as follows: Q. Miss Bran&am, were you aware that the Assistant Super- intendent of the jail was standing there at the same time? A. He was kneeling down beside me. Q. Ard when you said What happened?", did he offer any explanation? A. He said "Don't ask any questions. Just fix him up"..... And I said 'here's not a lot I can do on..the floor, here, sir." Q. That may be the reason for the exclamation marks... right? A. I was really annoyed..... - 14 - Q. I see... okay. Now, you said that there was a trickle of blocd. How much blood wuld be on the ground? A. Well, the trickle came from his nose. Q. Right. A. Tl-ere was. . . I wuld say a moderate amount of blood, &ich wuld be... like that (indicating). Q. Like... show them. A: Like that... in that circle (indicating). Q. Five inch circumference... okay. A. Right. It was like a puddle. Not deep, but just on the floor. Q. m that was the only blood you saw? A. Other than axming... and a bit coming from his lip, where the gash was. The second nurse to arrive on 5C was Laine Karklins, employed by the Ministry as head nurse at the M.T.E.D.C. She made the same observations as the first nur~se, pages 1067 - 1069. From an inmate in 5CE she obtained a cold-water towel and used it to inhibit bleeding. After taking Stalteri downstairs she . . . foun‘d his pulse was elevated at 120 but his blood pressure.'was normal, 120 over 80, page 1073. In the Medical Log Book, Exhibit 66, she later made the following entry: "Stalteri, Guissepe. Location: 5C. Phdne call at 1:35. Nurse to report to 5B. Inmate found on floor. Lower lip bleeding, left side, 1% cm. at. Left eye bruised. pupils dilated, reacting to the light. Forehead, right <, d - 15 - side, bruising. Vital signs stable. Blood Pressure: 12ObO. Injured area cleaned. Sent out to Scarborough General Emergency for skull X-ray and treatment. Doctor on Call: Dr. Grogan notified." The employer's first witness on the first day of hear- ings was Constable W.B. Warren-of the identification group in the Metropolitan Toronto Police Force. At about 12.55 p.m. on December 8 he took photographs of Stalteri in Room 327 at Scar- borough General Hospital, pages 33-36. Four of his photographs are in evidence as Exhibit 7(A)(B)(C) and CD). In all of them Stalteri appears to be lying on his back in a hospital bed.' As the witness said, the photographs were taken to show "visible injuries." Plainly visible are a swollen and darkened right eye, injured nose and lacerated,lower lip. The face generally seems bruised and swollen. Also in evidence are seven Polaroid photographs in .^ colour, taken by Richard Groux, a staff training officer with the Ministry. He said he was instructed to take them on the morning of December 8. They have been enlarged since to a size about 8 inches by 12, Exhibits 67(A)(B,)(C)(D)(E)(F) and (G); The five frontal views show many bruises more vividly than the black-and-white police photographs. No bruises are apparent in .._ , - 16 - the two rear views. I~I one frontal view a bandaged patch appears over Stalteri's right eye; it is not clear when this was applied or removed. He was not a witness but the first physician to examine Stalteri must have been Dr. T. Weinberger at Scarborough General Hospital, as stated in a letter by Dr. M.J. Bederman, dated May 12, Exhibit 63, as follows: Re: Giusepps Stalteri Dear Mr. Benedict, I am a plastic surgeon having received my degree in medicine in Toronto in 1969. I have my licence to practice in the province of Qitario and have my specialty in plastic surgery. This man appeared at the emergency department at Scarborough- General Hospitalon the 7th of December, 1982 and was seen by the general practioner, Dr. Weinberger who referred him to me. ckl examination at that time he had a bruised and swollen face with a laceration of his lip as well as considerable bruising around toth eyes. There was also some cornea1 abrasions of his left ' eye. Otherwise, his physical examination was normal. X-rays taken at that tire showed a fractured nose, a fractured right sinus and a fractured right orbital floor. These are in keeping with a fracture as a result of a blunt object striking the right cheek, right eye and right nose. The patient also complained of double vision which would also be in keeping with the physical findings as outlined. These injuries necessitated surgery which was undertaken the following day. - The terms used in the Bederman letter have been - 17 - explained by Dr. Alexander Peters, a physician who treated Stalteri on December 9 was transferred to the "cornea1 abrasions" as over the cornea, which that you see through," at the M.T.E.D.C., after which Stalteri West Detention Centre. He described "really abrasions, or scratch marks, is the front part of the eye..... page 1091. As for the "orbital floor" he said, at page 1092-1093: Well, at the back of the eye there is a . . . it is basically like a cup, or a little cave, made from thin bone... very thin bone. The eye sits inside that asp. The bottom part of it, the floor, it's called the "orbital floor." Q. Ha much force, or pressure, or whatever, iS required to fracture an orbital floor? A. Well, really, that doesn't reguire an awful lot of force behind it, as long as the thing is administered from the right direction, because this is really a "blow out" fracture, where, really, the air 'pressure causes a bane to sort of blow out to- wards the back of the eye. Q. Is this a common injury? A. In sports it would be... boxers very often have this, and ,if any kind of ball hits you in the eye, it could achieve this type of result very easily. Q. Now having examined these photographs, and having examined Stalteri, and so on, in your opinion, were his injuries consistent with a beating? A. Yes, they muld be. Q. .- Would they be consistent, in your opinion, with being punched in tba face with a fist? A. lhey muld. Q. And in your opinion, would these injuries be consistent with being bath kicked and pmched in the face? - 18 - A. It would..... Q. How much force is required to break somebody's nose, and a sinus? , A. Well, the nose, I presume, is more variable. lb fracture the sinus on that side, I would suspect it would take considerable force. Q. Considerable force to fracture a sinus? A. Yes. Q. More so than a nose? A. Yes. There is little detailed evidence about subsequent~ treatment given Stalteri. .However, he was seen on January 63, 1983,' by Dr. C.J. Radford, who referred him to a nose and throat specialist because of his complaint about "having trouble breathing." F3a testified he had s.rrgery a second time, had not fully recovered, and added at page 45: Well, since this accident happened, I get dizzy, you know, sometimes when I walk around, I get dizzy, I got to stop for a couple of minutes, you know, I feel like I'm going to faint, and I still can't breathe through my nose, and I got some problem, when I read, you know, and my eye, my right eye gets blurry sometime, you know, tien I read, or when I watch lV a lot. On the evidence as a whole .it is clear that Stalteri's - injuries on December 7 were serious and must have been caused by other persons, but not by Baxter. It is really beyond - 19 - dispute that this occurred during the brief period between the end of the scuffle in 5CW and the moment when Stalteri was found lying on the floor of the corridor 15 or more'metres east of the 5CW door. It is also beyond dispute that the injuries were sufficiently serious to require remedial surgery - and prolonged treatment. I EVIDENCE RELATING TO ROBERT GORDON The employer alleges that Robert Gordon participated in the use of excessive force against the inmate Stalteri. It is therefore necessary to review the testimony of certain witnesses and also the testimony of Gordon himself. Reference will also be made to the Occurrence Report filed by him, Exhibit 28, and the sworn statement, Exhibit 15, which he gave to a Ministry investigator on December 10. Stalteri's Testimony Stalteri's version of what occurred was told in his examination-in-chief and must be quoted at this point. The following appears at pages 41 and 42 oft the transcript: I, *. - 20 - This was in the afternoon, around 1:30, 2:00, around there, and..... me and another inmate, we were-wrestling, wrestling on the ground, you know, just circling around, wrestling..... and the guards came in. 'Ihey were at the door when I seen them the first time, and I noticed they were there, and I got up. ?he other guy got up, Baxter got up, he was walking one side, and I was walking the other side, tien about four or five guards came in... right inside the Unit, ard they pint me out, they said: "Let's go". I started walking, there was two guards on one side, two guards on the other side, and one or two in the middle. Scan as I approached them, I wss grabbed on both sides by the arms, ad the guard that was in front of me hit me in the eye. Gave me a sucker shot in the eye, and then I got another sucker shot and another one; I got tit six, seven shots in the face, and I was dragged down the... down the hallway, and I got kicked a couple of times until I was unconscious. When I mke up next, when I knew what was going on next time, I was -downstairs in the Hospital Unit. During then testimony the grievors were present, four sitting in a front row and the others behind. Stalteri was at first reluctant (ostensibly on-his lawyer's advice) to identify any of them as an assailant. He said "I don't know the guards' names but I know the face." He then pointed to those in front: D'Andrea, p.47, Bedeau, Gaston, p.53, and finally Robert Gordon. On being pressed, he later testified at p.56, as follows: Q. ;: A. Q. A. And Mr. Gordon? Him? Yes. - He's the one who grabbed my hair from the back, you know, and... He grabbed your hair? Yes, and he gave me a knee right in the... right in the lip. - - 21 - He gave me a knee shot, grabbed my hair, and he just bent... bent my head against his knee..... Q. And whereabouts did that happen? A. It happened in the hallway. I was kicked a couple of time, until I went unconscious. Q. And whereabouts were you kicked? A. In the head. Q. In the face? A. In the face and the head, yes. 'IHE ARBITRAl0R: Well, where were you at this time? t-WE WITNESS: In the hallway. Q. In the hallway? Were you standing up or lying down? ;: I was never standing up; they ware carrying me. Do you know who kicked you? ;: What's his name? Mr. Gordon? A. Yes. Oh, that's the one who gave me the knee, right. I don't remember who kicked me. I think soon as he gave me the knee shot, that's when I went under. 'IHE ARBITRATOR: Wall, then, how do you know you were kicked? 'ME WITNESS:- Row do I know? I was told I was kicked. Soon as I got the knee shot, that's when I went under, I remember nothing else. In cross-examination, however, there was the following testimony at pp.59-62: Q. You said that you were told that you were kicked, Who told YOU? A. Other inmates..... Q. I understand you did not go back to Toronto East? A. No, I didn't. Q. No? So what... did somebody in Toronto West tell you that you were kicked in Toronto East? A. No. But I used to.,. I used to go to the m Jail; I used to get transferred from the West to the Don Jail to go to the High Cart, right..... when I was suplzosed to go to High Court, they shipped from the West to the Don the night before, and I net a couple of guys that were in the same... the same ::::. Q. ;: :: A. Q. ;: i : ;: A. Q. A. Q. A. - 22 - Unit I was when this accident happened; that's how I know. So a lot of what you are saying here today depends upon what these other inmates told you in the Don Jail; is that correct? I told you what I know..... okay. And what you just told us is that you do not remember being kicked. That is what you were told by the inmates? Yes. Right? That's right. You are sure of that? Yes, I'm sure. And you did not see the inmates until some time long after December 7th? Right? Not that much longer. How much longer? A week? Couple of weeks. A couple of weeks? Yes. okay. You are sure of that? 'ho, three weeks, yes. Ckay. 'I'm or three weeks? And you are sure that the only reason yau knew that somebody kicked you is because this other inmate told you that in the Don Jail? Right? That is what you just told us? Yes. Stalteri made many other statements. These will receive mention later in this decision when his credibility is to be discussed.' Proctor's Testimony There is no doubt that Eric Proctor was the first to answer the code and the first to reach..Stalteri. He succeeded alone in conducting the inmate part of the way to the door of the 5CW day-room, pp.340-343. From that point, however, the - 23 - facts are obscured by a welter of conflicting testimony from several witnesses as well as by four of the six grievors. Proctor testified that he was suddenly met by a group of officers who came rushing through the door from the corridor, pp.343-346. Being much taller and heavier, he could hold Stalteri's arms behind the inmate's back while pushinghim toward the door. In this posture Stalteri's head was bowed Proctor himself had his head down and could not see very well, as he has stated, pp.342-349, 431. Nevertheless, he identified five grievors as those who struck or kicked their prisoner, either within the unit or in the corridor. According to Proctor, the grievor Gordon was the second officer to strike Stalteri, p.343. Cross-examined, he said at p.425: The first officer that came in..... was CO bcnsdale, He struck the inmate with a right hand..... on the right side of the face. Ihe second officer in the unit was CO Gordon, who again, did exactly the same thing. Proctor's testimony is even more detailed and precise in respect of other officers. The only grievor he did not identify as an assailant was D'Andrea. - 24 - His credibility, which was vigorously challenged in cross- examination and in argument, will be discussed later in this decision. Davidson's Testimony Raymond Dav~idson, called as the employer's last witness, gave a remarkably detailed account of all officers involved and of all the blows. The order in which he described them was not the same as Proctor's. In each case he described the blow ore kick and where contact was made with Stalteri's body. He mentioned an officer named Bradley, p.1250, not as an assailant but as one who was assisting Proctor, although .no other witness hasplaced Bradley beside Stalteri in the day- roOm Bradley himself was not a witness. According to Davidson, Stalteri was assaulted first by Gaston, second by D'Andrea, third by Gordon, fourth by Lonsdale, fifth by Bedeau and sixth by Fitzwilliams,some striking. more than one blow or delivering more than one kick. Further, according to him, when Stalteri was being escorted down the corridor, just before his collapse, there were six officers assaulting him and three holding him --- Proctor, Bradley and .l, he said, could be 10 rather than nine, himself. The tota pp.1374-1376. - 25 - Davidson's reference to Gordon appears in the following answer, p.1253: CCJ Gaston kneed the inmate in the face. Mr. D'Andrea hit the inmate in the head. Mr. Gcrdon hit the inmate square in the'face. 'Mr. Lons- dale punched and kicked the~inmate in the face. Mr. Pedeau struck the inmate square in the face. Mr. Fitswilliam round house kicked the inmate three times, right square in the face. He went on to say that this occurred "in view of the inmates," but just outside the door. Proctor had said the blows began inside the day-room. In cross--examination at pp.1299-1300 there was further testimony about Gordon: Q. ;: A. Q. ;: i: A. Q. ;: A. Q. An3 what did Mr. Gordon do? Hit him in the face. Ckay... and, with what? Fists. A fist... fists? That implies that there are more than one pun&. How many punches? Approximately twa punches. Approximately two? Ckay. Where did they land? In the face. In the face... did you see where, in the face? Yes. Where? The'jaw area. In the jaw area? Yes. And how did Mr. Gordon get in there? Did he ask Mr. Gaston to step aside after he knee'd him in the face, or... how did A. Q. A. Q. :: : : A. - 26 - Gordon get in there? Mr. Gordon wailed into the inmate... "Wailed"? . ..frontwise. "Erontwise"? Yes. Ad what does "wail" mean? Like a real good shot? Yes..... ..so far, repatedly being hit in the back of the head, and now we have got two good shots from the front, square in the face. My expression, yes... square in the face. Later in this decision it will be necessary to assess Davidson's credibility in the light of his own testimony and that of other witnesses, also in the light of his occurrence ,, report of December 7 and the sworn statement, Exhibit 12; he gave the Ministry's-investigator, Clair McMaster, on December 8. Other witnesses recalled seeing Gordon in the hall or in the unit at about the time of the incident or soon there- . . after, but none except Stalteri identified Gordon as one of the assailants. Gordon's Testimony Gordon was the first of the grievers to testify. Thus he had not yet heard the testimony of any other grievor, but he had been present and had an opportunity to hear all the * - 21 - witnesses called by the employer's representative. This griever said he responded to, the 5CW code from the 3B unit on the third floor. Several other officers, in- cluding Fitzwilliam , his partner, and also Lonsdale were on the same elevator. The doors on the fifth floor were opened for them by officers Chuhay and Cather, p.1397. Then they ran west to sew; Gordon said some were ahead of him and some behind, p.1398. He arrived about the same time as Lieutenant Simpson, the shift supervisor, Corporal Parish and officer Miller. The 5CW door was opened for them by Tennant, assisted by Fitzwilliam , p.1399. Gordon testified that he and others (Lonsdale, D'Andrea and Miller) "just got in the door" as Stalteri was being taken out by about four o.ther officers, p.1399. His attention, how- ever', was on the inmates who were "yelling and screaming" --- and climbing over tables, p.1401. Gordon and Miller were pushed .back by inmates trying to rush the door. The witness then suggested it was at this point or immediately thereafter that Lieutenant Simpson and Corporal Parish entered the unit and tried to restore order, pp.1402-1403. There was a great deal of noise and confusion. As more officers arrived, the - 28 - tumult began to subside and inmates were eventually persuaded to enter their cells, where they were locked in by Tucker, who had been guarding Baxter up to that point. Simpson also~ entered Baxter's cell, p.1405. When-Gordon noticed three senior officials at the 5CW door, looking in, he went to the door, which was opened by Tennant. Gordon continued at p.1406: I looked through the grille as it was opened and I seen an inmate lying on the floor at approximately the guard's office. ^ Standing over the inmate or knelt~over,the inmate.were two (2) nurses, CO Chafe, and CO William Bradley. I re-entered the . . . I entered Baxter's cell. I had not been in before. I entered Baxter's cell and asked Lieutenant Simpson if I might speak with him before he removed this fellow from the unit. He replied, 'yes, .you can'. At that point Mr. Simpson came out of this cell (indicating), which was Baxter's and ws went by the window here (indicating). I informed him of hat I had seen in the corridor, Mr. Main and Mr. Commerford, and also that an inmate was laying on the floor being attended to by two (21 nurses and two (Z)officers, and that in everybody's best interest, m had better not take this big guy out of here now. Asked why he had looked down the hall, Gordon testi- fied at pp.1407 and 1408. My reasons for looking down the hall was that it was very odd to see a Regional Director up there in that sort of a situation. Not uncommon to see him within the institution, however, we are usually we-warned to get yourself ship-shape. However, I thought it un- common that he would be there. .,. :. :.. - 29 - So when I spoke to Mr. Simpson and told him of the situation he informed Mr. Parish. I don't know exactly what he said to him back in the cell, came out, I went with Mr. Simpson down the corridor toward the inmate that was lying on the floor..... At that point two (2) nurses, cne nurse is Mrs. or Miss Karklins, and the other girl is a big girl. I don't know her name... and two (2) officers. Mr. Cbimnerford and Mr. Main were approaching the inmate as well but at a slower pace than Lieutenant Simpson and myself, so we passed them..... Mr. Simpson entered the unit office, the guard's office, and-just in and right back out again. I asked him, 'sir, do you want me to stay and help further with the situation or what muld you have me do?' k!e said, 'you are dismissed, you can go back to your own unit'. Gordon said he then saw Davidson near the door between 5B and 5C, but they did not go downstairs together. At p.1409 he added: 'It-e thing that I noticed most peculiar about Mr. Davidson was blood splattered cm his shirt. Q. Cculd you tell the Board tiere this blood was and how much of it there was? A. 'Jk blocd was more on one side than the other but I can't remember whether it was left or right, but it was splattered like in blotches across his chest area and somewhat down towards his ,stomach. Referred to Exhibit 28, his Occurrence Report dated December 7, Gordon said it was actually written on December 8, when requested by Lieutenant Simpson.. He asked Simpson whether he should mention their con;ersation at Baxter's cell, but the .I - 30 - shift supervisor said "NO, just give me a couple of lines, bring it down, I will proofread it. If it is okay, we will hand it in." 'Likemostother Occurrence Reports in evidence, it is-brief and more noteworthy for what it does not say than whatitdoes say. Exhibit 28 is as follows: sir: While assigned duties on the 3B unit on this date at approx. 1330 hrs. a Cede 5 was announced. At this time my own unit was secure with no visible movement in the area thus I responded to the Cde 5. Upon arriving at the 5C West Grill, one (1) i/m was being escorted out through the grill, I entered the 5C West day area in tiat appeared to beahostile situation as the 5C West i/ms suddenly rushed the area of the 5C West Grill. I instructed all inmates to relax ard move back and stand by their cells. I remained in the 5C West day area and assisted in the lock up of the unit then was dismissed by Lt. Simpson at which time I resumed my duties on 3B. In common with many other officers, Gordon made a sworn statement to Clair McMaster, the inspector representing the Ministry, on December 10. However, the questions and answers were hand-written by the investigator. At the outset a union representative named Moreau was present but --- according to Gordon at p.1417 of his testimony before the Board: - 31 - Mr. &Master informed myself and CC Moreau... I can't quote exactly what he said but it was something to the effect that this union has been... 'we feel that it has been impeding the investigation and you will not be allowed to stay in here'. SO Mr. tireau was removed. Gordon was asked whether the statement, Exhibit 15, reflected what he had said, and replied, pp.1418-1419: Yes, sir, it reflects what was said to Mr. McMaster. However, there are some things tiich were deleted. Q. What were those things? A. At first I didn't want to say anything without representation, either from the union or a lawyer. At that psint I was read to by Mr. McMaster... I am not sure of the section of the Criminal Cede I where he' informed me that I could serve fourteen (14) years in jail. Ba also read me from cur own Act and informed me that I could be fired, various things to that effect which scared me enough that I did tell him to the best of my knowledge the events of December the 7th. Other things.within... Q. Dces that statement reflect what you told him about the events? A. It does reflect what I told him other than on a couple of occasions I informed him that it was a near riot in that area of 5C West and he informed me that he didn't want to bear about that, SO it is not written in here. At the end of the statement he asked me to swear on a Bible that this was true. ~1 said to him at that time 'I will go better than that. I will swear on a Bible and I will swear on my two children's lives'. That is not in there either. Q. aning the course of this interview, did Wr. McMaster make any suggestions.to you with respect to your role in the events? A. He on a couple of occasions said, 'did you not have opportunity to strike the inmate? Did you not just take one shot at the inmate as you were going in and he was coming out?' . . . . words to that effect. Q. How did you respond to these suggestions, sir? A. 'No, sir, I had no involvement in strikiq this inmate in any way, shape, or form'. He also said I must have seen someone hitting the inmate. I said, 'sir, if I knew I would tell you. I had never seen anyone strike the inmate'. - 32 - Q. Ox more question, Mr. Gordon. EYom the time that you arrived in the unit cn December the 7th... :: Right. . ..to the time that you left and saw the inmate.on the floor, did youever leave the unit? A. No, sir, Idid not. Exhibit 15 resembles Gordon's testimony. It .is unbelievable, however, that he saw nothing of what was being done to Stalteri at or near the door. Cross-examined at length, pp.1421-1471, Gordon was not shaken in his version of the facts. He insisted that his Occurrence Report, Exhibit 28, was complete and that he ,omitted important matters only because he was so instructed by Lieu- tenant Simpson, pp.1424-1427. His attention had been focussed on the inmates and not on the man being taken out of the unit, so that he did not see any blows struck. As Stalteri was going out, inmates rushed to the grille. He was not hit, but they were "close enough that I could smell their breath;" pp.1439-1441. He was "scared" un~til the inmates were persuaded to enter their cells, p-1447. Lonsdale and D'Andrea were there at the time, pp.1453-1454. Davidson he saw during the lock-up, but not earlier, p.1455. . . In her testimony, Ms. Tennant did not name Gordon as r - 33 - being in any of the three or four groups of officers who entered the day-room. However, at p.563 she recalled a conversation with him: Q. Besides talking to Mr. Senple, do you remember talking to any- body else? A. Well, I was talking to Mr. Semple, I was talking to M. lmsdale. I remember talking to Mr. Gordon, for a short time. Q. Wnenwere youtalkingtoMr. Gordon? A. kk-. Gordon came up to the grille door. He was inside the unit, and he came up and I was talking to him. Q. Were you talking to him through these bars? i: Yes. With the door closed? 2 Yes. Was it locked? A. As far as I remember, yes. At p. 582 she again said she recalled talking to Gordon and Lonsdale. In his testimony, Lieutenant Simpson said he arrived at the 5CW door just as Stalteri was being brought out by "four or five" officers, of whom the.only one he recognized was Proctor. Inmates were crowding against the door, so that he and Parish had to help Tennant push against it, p.859-861. Then he and-Parish entered the day-room and found Tucker still struggling with Baxter, p-863. The inmates were shouting and screaming, but he did not know the reasons. Nor did he know -34- how many officers followed him into the day-room, p.868, his attention being on the inmates. He decided Baxter would have to be removed to segregation, but Baxter refused. While he was in Baxter's cell, p.871: Mr. Cordon came in and informed me about the inmate in the hallway, ard the fact that Mr. Mainwas on the floor level. Simpson's report to the Superintendent, Exhibit 23, ~written at home in the evening of Detember 7, identified the following officers as being in the day-room after Stalteri L was taken out: Parish, Tucker and Gordon. He pointed out that Proctor's report of what occurred inside the unit was not con- sistent with Davidson's report. Derek Miller, a witness called by the employer's representative, said he entered the unit at the time Stalteri was being taken out. After the commotion subsided he noticed Gordon, D'Andrea and several other officers standing in the unit while Simpson and Parish were speaking to two inmates. In cross-examination he said he thought Gordon arrived about the same time as himself and remained in the unit, p.1058-1059. -- He left the unit before.Gordon and D'Andrea. He was certain about leaving before Gordon, and he did not think it possible - 35 - that Gordon could leave and return during a "riotous situation," p.1061. His testimony is consistent with that of Gordon. To sum up, Gordon's account is that he arrived at the 5Cw door when Stalteri was being taken out by other officers, that he entered the day-room to assist supervisors in quelling the inmates, that he remained there until --- on peering through the grille --- he saw Stalteri on the corridor floor, that he reported his d~iscovery to Lieutenant Simpson and accompanied him put of the unit. This version is supported --- at least ,in .part- --- by Simpson, Tennant, Miller and Corporal Parish, p.995. It is not seriously contradicted by any witnesses other than Stalteri, Proctor and Davidson. For reasons to be stated later in this decision, the testimony of Stalteri, Proctor and Davidson is not entirely believable. In particular, it is not credible in relation to Gordon's alleged assault on Stalteri. His version is preferred. The evidence fails to establish that Gordon used -force on Stalteri. The first charge against him has not been proved and does not constitute just cause for dismissal. - 36 - j II EVIDENCE RELATING Td JOSEPH D'ANDREA The grievor Joseph D'Andrea,like the grievor Gordon, was a Correctional Officer 2 employed at the M.T.E.D.C. since 1980. The charge that he assaulted Stalteri is based almost entirely on the testimony of Stalteri and Davidson. D'Andrea was one of the four grievors in the front row identified by Stalteri at the hearing on May 20, p.47. Later, he said of DOAndrea, pp.54-55: ; He was the first one who hit me. Q. He was the.first one? A. Yes. Q. .Mherealxuts did he hit you? A. Right in the... right in the Lhiit. Q. In the Unit? Ard whereabouts dn your body did he hit you? A. Right on my eye. It is apparent, however, ;that Stalteri's memory of the incident was much clearer six months later than it had been at the time. There is evidence that he was sent to Scarborough General Hospital at about 3 p.m. on December 7 with D'Andrea as his escort. On this point he was (ross:examined at_pp.82-84. Q. 'A. Q. A. Q. A. Q. A. Q. Ai Q- A. Q. ;: A. Q. i: ;: A. Q. ;: ;: A. - 37 - HckJ did you go to the hospital on December 7th? ~cwdid Igo? Yes. I don't remember. Did you go in an ambulance? I don't remember. Ycu do not remember? No. You went in a taxi, I understand? I Qn't remember.. Do you know "ho went with you in the taxicab? NO But, Mr. Stalteri, you had been outside by that time. Yan- mind had cleared up. MY mind had cleared up, hut... YCU said before that as soon as you walked outside, your mind cleared up, and you started to remember? I told you my mind didn't clear out; it's still not clearing out. It is still not clear? It's clear but not that clear. Well, rake a look at Mr. D'Andrea, right behind you. Okay? 'Ihat fellow there. Yes. We took,ycu to the hospital&.. Did he? . ..in a taxicab? Didhe? Did you not know.that? Pardon me? I don't remember. Ycu do not remember that? No. Two days later, about noon on December 9, Stalteri had been returned from the hospital and "as questioned by Inspector McMaster. The whole of his signed statement, Exhibit 8, is as follo"s: 5,. - 38 - Q. C;n you tell me what you recall of the incident resulting in your being assaulted? A. Me and this other inmate were M tha floor wrestling around then the guard came then he left, before the,rest of the guards came we had stopped fighting (wrestling). Then 5 or 6 guards came on the range, they said "lets go". I started walking towards them, they grabbed me by the arms, two more guards were in front of me they started hitting me in the eye, they were still hitting me when they took me out of the unit. I saw guards coming from the east end when they came up they started hitting me then one guy kicked me in the lip, that's when I went urder. 'Ite next thing I remember I was in the wheel chair downstairs. Q. Can ya identify any of the officers tie hit you? ;: I don't know for sure everything happened so fast. Is there anything further you can add to this statement? A. The only thing I can say is I didn't provoke anybody. .~ Cross-examined about the above statement, Stalteri said his mind was not clear at the t~ime and I'my mind is still not cleared up," p.63. Referring to his statement on December 9 that he didn't know for sure who hit him, Stalteri testified, at pp.7%-79; Rut I had a reason why I said that, because I didn't know who I was talking to. - According to Proctor, the inmate Stalteri. while still in the day-room was hit first by Lonsdale, second by Gordon, , - 39 - third by Gaston, pp.343-344. He then mentioned seeing Davidson and seeing blows struck by Bedeau and Fitzwilliams, pp.345-349. He did not name D'Andrea. According to Davidson, the sequence was different. As previously stated, he said Stalteri was assaulted first by Gaston, second by D'Andrea, third by Gordon, fourth by Lonsdale, fifth by Bedeau and sixth by Fitzwilliams. In this precise and detailed order of blows and kicks, his only agreement with Proctor is that the last of the assaults were committed by Bedeau and Pitzwilliams. No witness other than Stalteri and Davidson claims to have seen D'Andrea in contact with the inmate. D'Andrea's Testimony This griever testified he was on a special shift December 7 from 6 a.m. to 2 p.m. For reasons which will appear, he was actually on duty until about 7.30 that night. At 1.30 p.m. he was processing visitors on the first floor. On hearing the Code he climbed the stairs to the fifth floor. There he found other officers running west, some ahead of him, others behind, pp.1481-1482. On entering 5CW he "noticed , - 40 - a bunch of officers going the other direction," but could not identify any of them. His attention was on yelling and.hostile inmates who forced him to back up against the wall where the TV is, p.1483. At that time he noticed Lieutenant Simpson and Corporal Parish. He also saw Tucker standing at the back with an inmate. Simpson took charge and the arriving reinforcements gradually moved the inmates toward their cells, although loud arguments and cursing continued,p.l485. When the cell doors were unlocked "we all grabbed a door; I stood by the seventh cell." He held it closed "until& ill UP." He continued, at' Tucker came around and locked them i page 1487: QIC@ the doors were all locked, I seen the inmates in the seventh cell pointing to somebody so I just took a quick look and I seen Red..... I noticed blood M his shirt. 'A. Did you hear what these inmates were saying or were they saying anything? A. Well, they were talking ixt I could not hear through the door what they were saying. D'Andrea further testified, p. 1488-1490: Mr. Simpson and Mr. Parish were in the fifth cell with Baxter ard another inmate. I was just waiting to escort the other inmate down to segregation, so I just sat there waiting. ;.~ - 41 - Q. Ycu were waiting to escort which inmate? ;: Well, it muld be Inmate Baxter. What happens next? . . . . . A. Mr: Simpson leaves the unit. I am still in that area. I am standing up, sitting down, standing up, sitting down and we wait for Baxter to pick up all his belongings. I remember leaving the unit with Baxter and myself, Ian Hadden and Mr. Parish. . . . . . Well, we walked out of that unit with Mr. Baxter. There was no problems with him at all. We walked down the hallway and we met &r. Main and Mr. Gommerford at the elevator, 5B elevators. Mr. Main took a look at Baxter's card, handed it back to Mr. Parish, and wa all got on the elevator together. Now we... me, Parish, Ian Hadden, and Inmate Baxter, we got off on the fourth and I don't know where they got off. So we took him to 4C. Q. After leaving Baxter in 4C, what did you then do? A. I returned to the first floor and I picked up a radio. I ,, want to pick up some inmates from all the floors for visits., When I brought the inmates back down, Parish was there and he told me that I was taking an inmate to hospital. I saidwho andhe said one of the inmates that was in a fight. It was then arranged that an officer named Crebbin should join him. They took Stalteri, who left a wheel chair and walked to a taxi. The following appears at p.1492 of the transcript: Q. Did you have any discussion with him in the taxi cab? A. Cn the way to the hospital he kept on saying that he had the better of the inmate. We asked him who the inmate was and he muld say he didn't know. Then he said it was Baxter, and then he said tha guards beat him up. He really.didn't make any sense on the way to the hospital. - 42 - So we get him to hospital. Be walks into Emergency, Scarborough General, ard we sit him down. The receptionist there asks him what happened and he says he was in a fight with another inmate. I think that is how she filled out the papers. Then we just waited for X-rays to be taken and the doctor to see him because the doctor was busy that night. In cross-examination, D'Andrea was asked about Stalteri's accusation, pp.1529-1531: Q. Can you think of any reason why Stalteri would deliberateiy lie or fabricate testimony about you hitting him in the eyes? 'A. I can say that he seen me the most. I am the guy who took him to the hospital. He muld remember me. I was the guy that stayed with him in the hospital plus he knows me as an Italian. ,, He has talked to me in Italian before when I have worked the unit. THE ARBITRATOR: How long did you stay with him in the hospital? !ME WITNESS: I was with him from 2:00 o'clock until I think it was 7:30, sir..... 'IME ARBITRATOR: Ycu said you had a conversation with him in Italian? THE WITNESS: Yes, sir. There was guite a few Italian inmates in 5C at that time that knew me as being Italian and have talked to me in Italian. THE ARBI'IRATJR: Did he say anything alzout who had hit him?. THE WITNESS: No, sir. ,THE ARBITRATOR: Or about Baxter? PIE WITNESS: Well, in the cab, in the taxi cab, that is what he kept cn saying. He was saying that he had the best of Baxter, Baxter had the best of him, the guards did this to him and this continued from the time we left the Toronto East until we got to Scarborough General. THE ARBITRATOR: In Italian or in mglish? 'IME WITNESS: In Pqlish, sir. THE ARBITRATOR: In English? THE WITNESS: Yes, sir. THE ARBITRA?DR: When did you start talking Italian? ?HE WITNESS: No, I said that at different times that I have worked 5C he would talk to me in Italian. - 43 - 'E-E ARBITRATOR: Oh, not in the hospital or the cab? 'IWE WITNESS: No, sir, I don't rememker talking to him in Italian. I might have. I just don't remember. Also in cross-examination the griever said that while he was in the day-room, apart from Simpson, Parish.and Hadden, he saw Davidson, Bedeau, Lonsdale and Miller. He remained because he thought the supervisors might need help and he had no unit responsibilities on the first floor. Thus, "I stayed in the unit until we walked Baxter out," p.1521. He denied seeing an inmate lying on the floor of the corridor, p.1522. A While waiting in the day-room, Simpson had been in the fifth cell with Parish questioning Baxter. By that time of course order had been restored and all the other inmates were locked in their cells. D' Andrea said "I stayed right in that area where I can keep my eye on them. That is all I was interested in because this inmate was all riled up and Mr. Parish and Mr. : . . Simpson are in there. I am more or less just covering.from the outside," p-1520. Since D'Andrea was vigorously cross-examined about them, reference must now be made to his-occurrence Report and the statement he gave Inspector McMaster. - 44 - The occurrence Report, Exhibit 31, was apparently written at 1 p.m. on December 8. It is as follows: Cn Dec.7-82 I was assigned to work 6-2 shift. At 1300 hrs. I was assigned to help with visit. At approx. 13:30 there was a 5C code. I responded by going up 1B Central to 5B door to SC. I then entered the unit to help Mr. Simpson ard Mr. Parish lock up the iym's in the unit. D'Andrea said he wrote the above report as requested 'by Parish. He then said he gave it to Mr. Simpson who "read it over and he said that was fine," p.1493. After lunch, however, he was questioned by the police, and he gave them a report. Later that afternoon he was called in by Superintendent Dunbar and suspended, p.1497. All this was on December 8, the day following the incident. The date is important because Davidson had .sought and obtained an interview with Dunbar at eight o'clock that morning. On December 10, D'Andrea was recalled to be questioned by Inspector McMaster. He signed and swore to a statement, Exhibit 14 (written by McMaster) giving more information than he had volunteered in his Occurrence Report. The answers he gave - 45 - ‘1~. ,‘. .“.;’ -: . . . . . . . were consistent with the Report and with his testimony,subject to one possible exception, which is ~the following: Q. QXXY yarr arrival at 5C West unit did you see an inmate being taken out of the unit? ,A. No. Cross-examined, he said he passed "a bunch of officers coming this way" just after he entered the unit, but “No, I never seen the inmate. I just seen a whole bunch of officers, like in a huddle," pp.1507-1508. D'Andrea was again interviewed by Inspector McMaster on December 20, but he was again denied union representation and refused a copy of the tape which was made, p.1496. The employer states that the tape is not available, p.1497. Although the witness Proctor did not name D'Andrea he .,. said in a different context that after Stalteri's collapse in the corridor he returned to the 5CW door and went into the unit, his reason being that he knew a few officers were there --- and also some very noisy and indignant inmates, one of whom, p.357, _ - was saying: - 46 - "We don't have to take this shit. He was on his way out. We don't have to take this garbage. We don't have to take this shit. ' Proc.tor said he saw in the unit Tucker and Simpson and he saw Davidson who was yelling "Get the key!" He also saw D'Andrea: Mr. D'Andrea was standing in front of the sixth cell. He had his foot in the door, and he was closing the sixth cell. Proctor continued at p.358. 'lbere was inmates in front of theeighthcell, who were pointing at Co D'Andrea, and saying: Yba fat fucker with the moustache, the fat fucker with the moustache." I went over tbereandsaid, "hey guys, get in your cell." I closed the eighth cell. There ares several features of the testimony quoted above which call for comment. First, it may be compared with D'Andrea's testimony, already quoted, that inmates in the seventh cell were pointing at Davidson, the man known as "Red," who had blood on his shirt. - 47 - Second, the reference to a moustache may be compared with a document in which inmates referred to a "beard," not a moustache. Although the document does not (in the opinion of Lieutenant Simpson) identify DOAndrea, this may be a convenient Lieutenant Simpson obta~ined Exhibit 64 from the inmates some time after 2 p.m. on December 7. This occurred in the following manner and for certain reasons. When Simpson and other officers arrived (about the time Stalteri was taken out) they found inmates in a ~~hostile" or "riotous" mood and so belligerent that several tried to rush the door. Simpson and others entered the unit, engaged in a .i point at which to quote Exhibit 64, for whatever it may be worth. Its evidentiary value is doubtful, but it was repeatedly mentioned throughout several hearings in this case. shouting match with inmates and eventually persuaded or intim- idated them into a general retreat to their cells, where they were locked in by Tucker. At that time, according to Simpson, he "hadn't a clue" as to what the commotion was all about, p-866. Other officers,including D'Andrea,-have said the same. Notwith- standing all the noise and disorder which certainly prevailed, - 48 - the Board finds it difficult to believe that no one realized the inmates were protesting against the treatment of Stalteri. Their indignation strongly suggests that Stalteri had been assaulted inside the unit, in full view of the inmates, as well as in the corridor. Indeed, Simpson admitted at pp.866-867 that he did have "a clue:" ME ARBITRA'IOR: DidnIt they say anything to you about what had'happened? THE WITNESS: Yes, they tried to, sir, batt I was trying to " get the inmates into their cells. I didn't want nineteen (19) guys shouting at me. There is no way I could understand what nine&err (19) guys are shouting all in their own particular tone. I have no idea. 'ME ARBITRA'TJR: Did McKinncm talk to you? THE w1TNEss: Inmate McKinncn? Sure, he spoke to me. Three (3) or four (4) of them spoke to mei 'IWE ARBITRATOR: What did MCK~MM say? 'ME WITNESS: Well, they thought that the inmates were hostile simply because the officers were supposedly or allegedly striking the inmate unfairly. mt nothing happened while that ./.~ inmate was led art of that unit while I was there. MR. ROBINSON: In other words, what you saw of the inmate being led out, nothing untoward took place? IFIB WITNESS: Nothing. 'hat is why I went into the unit. I didn't think there was a problem outside the unit. Simpson's argument in his shouting match with the ringleaders of the inmates was that he could not possibly - 49 - understand their grievance until the restoration of order. He promised that if they retired to their cells he would come back later and get their side of the story. Simpson knew all of them from past experience, p.869. Later in the afternoon, Simpson returned to 5CW. His account of the visit, pp.882~883, is as follows: After I arranged for the inmate to have an escort to hospital, I went back up to the unit again. See, omen I locked those guys~ up, these guys were all uptight. They were all upset and ,; I didn't know why. I wanted to find aut why. So I went up there and I unlocked all the cells and I allowed the inmates aut into the day area again. I spoke to them and asked them what~ the problems were. by this tima they had cooled off abit. ckle particular inmate by the name of Lockhead had already written his statement on official letter pacer, right? I assumed he was sending it to the ombudsman. I think he stated that. So he let me read it. I read it and I asked the other inmates there if they agreed with what he had written on this particular pacer. I said 'if you agree with it, sign it and I will take it down to .the Superintendent'. See, they were not satisfied that we would do anything about the incident. Maybe sometimes that happens. Maybe nothing is done that satisfied the inmates. It was my in- tention to see that they were satisfied because I am the guy that has to work with them. I was not satisfied with the noise and the rebellious nature of that particular unit. I wanted it quieted down. We still had a couple of hours on our shift to go. MR. ROBINSON: So when you first saw that, there were not all the names on it that se cn there now? -IHE WITNESS: No, there was only Lcckhead;s. He was the one that was writing the letter but he showed it to me and I read it. I I - 50 - passed it back and asked each and everyone of them if they agreed with this particular statement. If they did, to put their names to it. MR. ROBINSON: Did you read it aloud? - THE WITNESS: No, I never read it aloud, no. Ireadit. They signed it and I told them that I would submit this to the Super- intendent just as soon as I left the area as lcng as I had their word that there was not going to be any more problems on that unit, which they gave. 'lbare were no other problems m that unit. I took this down and gave it to Mr. Dunbar. No inmate other than Stalteri testified. Of those in 5CW, 17 signed Exhibit 64, including all in 5CW except Stalteri and Baxter (who had been moved out) Baxter's cell- ~. mate and perhaps one other. At least one signature is illegible. Notwithstanding its dubious value, Exhibit 64 (as spelt by Lockhead) is as follows: Cn the December 7 in corridor SC of the Toronto East I was witness to an act of crulety U-I the part of the officers of the Metro East Detention Centre. At approx. 1:30 a fight brok cut between two in mates. 'Ihe guard on the floor hit the emergency switch. The first 4 officerscn the scene had the situation fairly well stopped and the participants separated. Ihey were leading one of the fighters Jce Soltarie out of the range when 12 to 20 more officers arrived. They imeediately started to beat on theman being held by to of the orriginal officers to respond. At that instant all the men on the floor wore up to defend their friend. I can only identify 2 that I actually seen hit the subdued man. - (1) tit.5 ft. 3 red hair - 51 - glasses blemished face 140-160 (2) abut 5'4" brown or black hair beard abaIt 190-200 Richard Culman ??? Vendemini 'John Wisnowski- Norman Savoie Robt. Clatney David Marshall David Dsnaghy John White Gad Lockhead Michael McKinnon Roman Perdes Rcbt. Allen Frank Leo Edward Brenn Barry Ellison Lewis Motnover One signature illegible Simpson had more to say about Exhibit 64, at pp.900-901: Q. Now, the inmates have given you a..:apparently cn this 'petition, Exhibit 64, they have attempted to identify a couple of officers? ;: That is correct, yes. hbw, were you able to put any names to these descriptions? P. I recognize the number one officer, the one identity, the first identified officer. Q. Who did you recognize that to be? A; Officer Davidson. Q. Anyone else? A. The second officer, no, I could not put anything to that one at all. Q. Now, when you were in the unit and during this incident, did you see Officer Davidson? '- A. I think Officer Davidson was one &the officers that brought him out through the grille. 'IHE ARBITRATOR: What was that? MR. lX)BINSON: Say it slower. ?3E CVTTTNESS: I think Officer Davidson was one of the officers involved in bringing him through the grille. - 52 - Nevertheless, Simpson denied seeing Davidson at the grille; he was watching inmates, not the officers. .- Further reference must be made to Proctor's testimony as to his experiences in 5CW. He said that on going to Tennant to get a key he "looked down the hallway, and there was the inmate... way down the hall and there was nobody near him." If this is true, it means that Proctor himself and all others escorting Stalteri had left him alone for some time in an un- conscious, or at best a semi-conscious condition. However, Proctor added that when he saw two "suits," i.e. Ministry officials, coming through the door between 5B and 5C, he quickly returned to the unit again, P.361. Proctor gave a very positive answer to the last ., question put in his examination-in-chief, p.382: Q. t&w, when you went into the unit, Mr. Proctor, to restrain Stalteri, did you notice any injuries, or anything unusual about his face? A. Sir, I never saw his face. I neversaw his face. Q. Okay. Did you see Mr. D'Atdrea take part in the incident? A. None whatsoever, sir. This may be compared with the equally positive state- ment of Davidson, p.1253, that "Mr. D'Andrea hit the inmate in the head" just after the party went through the door into the hall. Gaston was first and D'Andrea was second, according to Davidson. On the other hand, Stalteri testified of D'Andrea at p. 54: "He was the first one who hit me... right on my eye." ,It is not possible that all three versions are correct, but one of them probably is and both the others must be wrong. Corporal Parish said that,while assisting Lieutenant Simpson in the unit he noticed only two other officers (apart from Tucker) and they were D'Andrea and Gordon, pp.995-996. Later, D'Andrea accompanied himself and Baxter to 4C, p.999. .._ When they went down the hall, he said, it was "empty," p.1000. This his consistent with DOAndrea's statement in Exhibit 17 and in his testimony that he did not see Stalteri until instructed to take him to the hospital. It is probable that he noticed a party removing some one from the unit, 'but there is ample evidence that a "cluster" of officers were crowded - 54 - around the inmate, whose head was down. Lieutenant Simpson said he recognized only one officer, Proctor, and did not recog- nize the inmate..- In any case, D'Andrea, like Simpson, Parish, Tennant and others, was focusing on the riotous tumult beyond the grille and within the unit, which was natural, particularly when several inmates had tried to push through the door. It has been argued that D'Andrea and the other grievors, 'being present in ornear 5CW at the time of the incident in which Stalteri was injured, "had an opportunity" to commit tb,e assault and that this and the surrounding events constitute circumstantial evidence of guilt. To have "an opportunity'* merely proves a possibility; it fails to prove a certainty or even a probability. Even the "possibility" fails .when there is cogent . ..~ evidence that the grievor, being D'Andrea, was not a participant, and the only evidence to the contrary comes from Stalteri and Davidson. The Board is not satisfied that the charge against D'Andrea has been proved, and his grievance against dismissal on the first charge must be upheld. -. - 55 - III. EVIDENCE RELATING TO STEPHEN ALEXANDER LONSDALE The griever Lonsdale was an experienced correctional officer, having joined the ministry attheM.T.E.D.C. in December 1977. From April, 1982, his work was as the "Temporary Absence Program Co-ordinator," processing inmates under consideration for transfer to the Mimic0 Correctional Centre where they would be allowed absences from time to time for the purpose of holding a job or for some other reason. He functioned on the second floor,which accomodated "institutional workers," i.e. those given work in the building. Lonsdale was not one of the four grievors identified by Stalteri on May 20, 1983, although he was present in the hearing-room at the time. The principal evidence against Lons- dale is that of Proctor and Davidson. .., During his examination-in-chief, Proctor said he was "getting close to the door" with Stalteri.in his grasp when the door opened and he "saw feet." He was also conscious of "running shoes" on his right, i.e. inmates' feet, p.343. And then he testified: - 56 -' All I remember is being straightened up. It is like, I got jolted upright. When I was jolted upright, I looked right into the face of CO Lcnsdale. h-d CO Lcnsdale... I got upright and all I saw was this (indicating). That was my picture. A fist which struck _ Stalteri cn the right side of the face. I looked straight in Cecile Lcnsdale's face. It was just a flash, and the face that changed, it is bang Lonsdale, and than, it is bang officer CD Gordon... CO2 Bob Gordon was right behind CO lonsdale. Again, striking Stalteri in the right side of the face. - Both the officers hit with their right hands. 'Proctor also said that a few minutes later (after spending a little time inside the Unit) he had a conversation with Tennant at the 5CW door. He ~testified, at p.363: Ms. Tenant was talking to CO2 Lcnsdale at the grill door. The only bit of the conversation I can remember, was Mr. Lcnadale said: "1 thought you were waving us on." And Ms. Tenant said: “No, I wanted you to stop." . . . . . Ms. Tenant was on the outside of the grill, and Mr. Lcnsdale was on the inside of the grill. Mr. Lcnsdale turnedaround and headed back for the fifth cell. I said to Ms. Tenant: "What the hell 'happened?" She said: "My Cod, Eric, you didn't stand a chance. 'lhay tore him right cut of your arms." Cross examined at length, Proctor swore to his certainty, at p-418: .- 8~) I - 57 - Stalteri was hit in the unit by officers, who I have described. NW... Q. Are you sure of that? A. Sir, never in a million years, is U&only expression I oould use, will I ever waiver on Lcnsdale, Cordon and Gaston, never. And I will never waiver an Bedeau and Fitzwilliams. At p.425, Proctor again referred to Lonsdale: I knew where I was along the wall because all of a sudden, the wall was not there. Tha first officer that came in, when I got straightened up, was CO2 Lcndsdale. We struck the inmate with a right hand, and he struck him on the right side of the face. Proctor later said: ."I was on my way out, and I believe to this day I could have made it out"--- without assistance ,, p.427. At p.429 he repeated that "the first punch was thrown by CO Lonsdale." .v. The certainty Proctor expressed at then hearing in May had not yet developed on December 8, 1982. On that date he gave McMaster a sworn statement in which he was asked "What other officers were present?" and replied "I don't know." Two _ days later, after two long private meetings with Davidson and - 58 - after being questioned by the police, he gave McMaster a second sworn statement, this time identifying as assailants five of th e grievors, but not D'Andrea. In both statements, however, he indicated that Davidson had come to his aid, Exhibit9. On the other hand the officer on duty at the door, did not think Lonsdale was among the first to enter the unit. Tennant's testimony~at pp.557-559 follows: 'Ikre was guite a few people that came in and went out, and came in ard went out. %a first group, second... yes, there h was the three groups, plus a fourth that sort of wandered in, or made a half a decision to wander in. Q. So, are you telling us, that there is officers coming in and out of this unit wfiile this is going on? A. Well, there were the officers coming out with Stalteri. Than the officers went in, an3 then another group of~officers ware waiting to go in. It was that time, that I mms in... Mr. Lcnsdale was .talking to me, asking me what was going on. I explained that it was an inmate fight. So he said, "well, let me in." So, I let him in. I believe there were officers coming out, but I don't remember exactly who, or... .IHE ARRITRAICR: Well, was msdale in the second group or the third group? A. Mr. Lcnsdale was with... I am getting confused with these cp-oups . Ttere was... Proctor and 'Rxcker were the first group. In the second'group 'vculd have been Mr.~Davidson and Mr. Fitzwilliams and that group. Then came in the other group. I kdieve Mr. Lcnsdale was with that gmup. Q. That muld be the third group? A. It would be the third group, yes. THE ARBITR&R: Well, tiich group was MrY Simpson in? A. Ha would have been in the third group. Cne, two... yes, approximately the third group. - 59 - It is obvious, however, that Tennant did not observe or cannot remember all that occurred. Her attention was on two functions: opening and closing the door when required while at the same time watching her partner.Tucker, whose position at the north end of the day-room seemed rather precarious until reinforcements arrived. Davidson's references to Lonsdale are part of his detailed account of the assault on Stalteri. After saying that he arrived in the unit to find Proctor struggling to restrain Stalteri, assisted only by an officer named Bradley, the folowing testimony was given by Davidson, at pp.1252---1255: Q. Okay, fine. So, you grabbed the inmate, by the shirt, with both yax hands. Then what happened? A. I tried to pill him out of the unit. &a to an inmate uprise, disturbance broke cut, due to the situation. As of that point, officers xho were with me, approaching the incident, were all over me. As I was in front of the inmate, the officers were trying to get at the inmate. So, a see-saw motion occurred, where I mas trying to heave him out of the unit. Trouble of trying to get him cmt of the unit. Q. Okay? A. As we see-sawed through the door, into the hallway, an assault occurred. Q. Okay. What happened? A. CO Gaston kneed the inmate in the face. Mr. D'Ardrea hit the inmate in the head. Mr. Gordon hit the inmate square in tjk face. Mr. Ixnsdale punched and kicked the inmate in the face. Mr. E!edeau struck the inmate square in the face. Mr. Fitzwilliams round house kicked the.inmate three times, right square in the face. Q. Okay now, can you perhaps help us with these diagrams and show us where all this was going on, Mr. Davidson? A. Right there in the view of the inmates (indicating). Q. Is that where all this assaulting took place? - 60 - A. Yes. THE ARBITRATOR: That all happened just outside the door? A. Yes. . . . . . Q. Then what did you do? What were you doing, when all this was going on? A. Holding the inmate on the right side. CO Proctor still in the same position, in back of the inmate. CO Bradley on the left side. Q. Did you see any blood at this time? A. Yes. Q. Whereabouts? A. I received blood on my shirt, due to the excessive beating. Q. Did you see it anywhere else? ;: At the time, I can't recall. Okay. What happened next? A. As the beating was going down, I was yelling them to stop the beating. As there were several officers' '. at that time, controlling the inmate, I wanted no part in the assault. I returned back to the unit, where the disturbance was going down. Davidson then had ,to explain that in prison language "going down" really meant "going on." Actually, he said, "the disturbance inside the unit was getting worse," p.1255. At p.1259 Davidson said that on leaving the unit with Simpson they saw Stalteri lying on the floor some distance from the point where he, Davidson, had left the escorting party. At 4 p.m. on December 7, as requested by Simpson, the witness produced a report including the well-worn assertion that "I used minimum amount of force." This meant, he testified, .,., - 61 - "grabbing him by the shirt, pulling him out," p.1261. In Exhibit 12, the sworn statement given McMaster at 2.40 p.m. on December 8, Davidson gives an account corresponding closely with his testimony six months later. In his first answer he described the assault; in the se_cond he depicted him- self as peacemaker: We, 'Mr. PROCIDR, myself and Mr. BRADLEY had the inmate restrained everything was fine at this point. 'Ihen Mr. GAS'ION C.O.l grabbed the inmate by the hair and banged ,. the head into his right knee. Mr. D'ANDREA repeatedly struck him (the inmate) in the back of the head with his fist. Mr. KXUCN hit him two times in the head with his fist, Mr. LGNSDALE hit the man four times two punches and two'kicks in the right side of the head. Mr. BEDEAU struck the inmate twice cm the forehead with his fist. Then Mr. FI'JZWILLIAM swung around with his left leg and hit.the inmate three times with his boot in the face, the inmate appeared to go limp ard he appeared unconscious and he was being held up by officers. At this point the inmates inside were going wild, I went back in- side the unit to assist there as several staff were with the inmate. . . . It-ran the inmates were eventually locked up and I returned to my unit. Q. What were you doing while these staff were assaulting the inmate? A. I.yelled "stop it your going to kill him", I ms pulling him towards ma to try to get him away from the staff who were hitting him.. Q. Were any blows struck while inside the unit? A. As I can recall no, everything happened in the hallway. I grabbed at the inmate from the front to pull him out this may have appeared that I was striking him. Q. What were officers PROCTOR and BRADLEY doing during this assault. A. PROCIDR was holding the inmate from the back, BRADLEY was on his left side. Q. Did they attempt to stop the assault? A. I don't know. - 62 - Q. who all (officers) was in the unit when you went in the second time: A. Lt. SIMPSON, Cpl. PARRISH, Cpl. HADDEN, Mr. PROCIDR and myself otters came in later after we had secured the.itunates, the whole bvlch of them. The staff that assaulted the inmate were standing just inside the grill. Q. Did you see the inmate STALTERI again after his assault? A. Yes, when I came out of ths unit after the inmates were secured. 'D-e inmate (STALTERI) was down by the unit office which is quite aways from the unit grill. He was on the floor being attended by nurses. It is noteworthy that in his statement Davidson attri- buted to Lonsdale four punches and two kicks "in the right side of the head." Cross-examined, Davidson said Proctor had Stalteri in a "full nelson," which he described as "arms wrapped around the neck area." The evidence 'of Proctor (and other witnesses) is that Proctor was holding Stalteri's arms behind the inmate:'s back. Then came other officers, said Davidson, "actually jumping all over,me" in their zeal to reach Stalteri. He could not explain .c why Simpson, Parish and Tennant, standing at the door, do not recall having seen this activity. Further in cross-examination,, after describing blows by others, Davidson said that while Stalteri was "yelling and screaming," Lonsdale was "in back of me. . . . . in between Proctor and myself, hitting the inmate," p.1302. And then: - 63 - Q. ii: A. Q. A. Q. :: A. Q. A. Q. i: ;: A. Ad where do these punches land? In the face. In the face... okay. And then what dces Lcnsdale do? Runs around my side, my right side... Right? . . . and hits the inmate two times in the face with kicks. Oh, with kicks!! Oh, yes. Ckay... and tow doss... how does... first of all, is Lcnsdale wearing... do Cm&-ectional Officers wear boots? Depending... shoes or roots. Right... and where does he kick him? In, the face. . . . . . Where in the face? Eront of face. Front of face? Yffi. Well, was it to either side? It was in the face. After further blows from Bedeau and Fitzwilliam , "the inmate fell limp," according to Davidson, who seems to have been still there at the time. He denied having inflicted any blow himself, p.1316, but admitted he was the only officer with blood on his shirt, pp.1317-1318. .,, At pp. 1376 and 1378, Davidson gave his estimate of numbers involved in "restraining" one man who was already out of the day, room and-in the hall: 'IHE ARBITRAIDR: I asked you who was around this man, just after you got cut the door? _, - - 64 - 'IHE WITNESS: Ckay. 'lhase men were around this inmate. ME ARBITRATDR: Six men? TkE WITNESS: The people1 named,plus a3 Proctor, Bradley and llyself. ME ARBITRATOR: That's nine. You didn't see him slip down to the floor? 'IHE WITNESS: No. . . . . . !lHE ARBITRATDR: Well, according to your testimony, I gather that three of you were restraining him, and six other people were attacking him. Is that what your testimony amounts to? THE WITNESS: When the assault occurred, yes. Whether it was either possible or necessary for at least nine --- or approximately 10 men, according to Davidson- --- to "restrain" an inmate who had already been brought out into the hall is a different question which Davidson was of course unable to answer. The fifth floor is a maximum security area and the door between 5B and 5C is supposed to be kept locked, so that if a'5C inmate escaped into the 5C corridor he would not be able to reach the landing on 5B. Even there the stairway door is locked and the elevator must be "keyed." At 1.30 p.m. December 7 the 5B officers were J.R. Cather and a woman named Chuhay. They had keys toboth 5A and 5C, ~When the code sounded _ she went to the stairway door and he to the 5C door, which he held ajar so that officers arriving could go to 5CW. However, - 65 - he could not recall the names of any of the officers --- certainly at least 20 --- who passed through the door that day. At some point Cather saw (through the door window) a group of officers coming back from the 5CW door, but he was very vague about the details, as follows, at pp.1133-1138: H3w many people muld have been in this group? A. I don't know. Q. Well, can you give us scme idea? Was there.201 A. I don't think there was 20, ixt I am just aware of a group of people. I can't exactly have a recollection of how many people. There seemed to be a fair amount of people. I can't honestly say. Thsre certainly wasn't 20. Q. Wculd it have been lo? A. Possibly, sir, but I can't honestly say. Q. Okay... anyway, you see this group-of people wming down the hallway, and ycu said they were moving quickly? A. They seemed to be coming guite rapidly, yes. Q. What were they doing? A. Walking. Q. What else were they doing? ;: That's all they'were doing, sir. Did you see if they had an inmate with them? ,;: I understood they had an inmate with them. NO... no. When you were looking at them, did you see an inmate. A. No, I didn't see an inmate, actually. I was just aware of a group of people coming down the hallway. Q. Were they marching down the hallway? Can you tell US how the group was moving down the hallway? A. T!-e only thing I can remember is it seemed to be they were moving rapidly towards the 5B/C door. Q. - Did you see anybody in this group of people do anything? Did you see any punches being thrown? A. No, sir. Q. Any kicks being thrown? A. No, sir. - 66 - Q. Any noises coming from the group? ;: No, sir. Could you hear through the door, anyway? A. I dDn't think so, unless they were screaming. Q. Okay, so then what happened? A. I walked towards the doorway.- I took the key, and I pit it in the leek, turned the lock and I openedup the door. . . . . . Q. Ad what did you observe when you opened the door? A. I observed an inmate laying in the hallway. He had blood... it seemed to be coming from his mouth and his nose. Q. Ad where... can you show us, maybe, on one of these pictures, where ycu observed the inmate? Row about this... can you see where you may have observed him, in that picture? A. 'lb the best of my recollection, sir, he was around the office area. Q. Okay. Can you pint that out for us? :: Svre . Around there, I think (indicating). Okay. A. In my mind, sir, the inmate seemed guite badly hurt. I was A quite ccncerned about his welfare. He appeared to be unconscious. Q. How far away were you when you were looking at the inmate? A. Well, I must have been, possibly 18 feet, 20 feet. That is, as best as I can remember, anyway. My priorities shifted then. I was thinking more of medical attention for the inmate. Q. Before you go on to that, what else did you observe atout the' inmate? You said the inmate seemed quite badly hurt. ;: Yes, sir. At-cl he appeared unconscious. What did you observe about the inmate that made you believe that he was quite badly hurt?, A. He was making, it was almost like a gargling sound, and a rasping sound, and his hands were shaking rather. violently. Q. Anything else? Was he bleeding? A. Yes, sir, t-e was bleeding from his mouth, and I believe he wes bleedingfrom his nose; Then Cather was asked at pp.1139-1140 what officers he had seen: - Q. So you have opened the door, and you have seen the inmate there. Did you see any officers? - 67 - I A. Yes, sir. Q. Did you recognize any of them? A. 'Ibare were a few officers around there I did recognize. I think a few were trying to give him some medical attention. Q. Who were the officers? A. Well, I think there was Correctional Officer Gaston was there; Lcmsdale, I believe, was there; Lieutenant Simpson came out of the unit shortly after that time, and he was there. Q. How many other officers were standing around, when the inmate was on the floor, on his stomach? A. I c;n't honestly recall. I would'just have to guess. It might have been two or three. I am really not certain, sir. If Lonsdale and Gaston were actually standing over Stalteri as Cather states, they must have left very quickly because other witnesses saw Stalteri lying alone on the floor, but Cather said "I think" Gaston'was there and "I believe" Lonsdale was there.~~ He was cautious in giving all his testi- many , perhaps due to anxiety that his .memory might be at fault, but after six months an honest witness is justified in being cautious. He was "not sure of the time, really".and repeatedly used' the expression "I believe." In the sworn statement Cather gave McMaster on December 13, Exhibit 20, he had been asked the following question: When yau saw the inmate on the floor what officers were present? . His answer was: - 68 - Mr. Lcnsdale, Mr. Gaston and several maybe 5 or 6, other. officers &ho I can't recall. Mr. Simpson was there shortly after. In cross-examination Cather was reminded that in the statement he had said "maybe 5 or 6 other officers" but in testimony he mentioned "two or three." He admitted the earlier estimate would be "more likely." In fairness it should be pointed out that --- with characteristic caution --- he said "several maybe 5 or 6" on December 13 and on June 10 he said "I can't honestly recall. I would.just have to guess. It might have been two or' three. I am really not certain, sir." Some of Cather's other testimony was rather confused. He recalled letting Semple through the door, but not Assistant Superintendent Lochead, p.1147. He-thought Simpson reached Stalteri before CommerfordandHain, which is not likely. He thought Nurse Karklins arrived before Nurse Brandham, which is certainly not correct. On the whole his caution seems to have been well-founded. Lonsdale himself testified that he responded to’ the z code from his office on the second floor. His testimony as to his own role in the incident, at pp.1556-1562, was as follows: - 69 - Q. Ard I take it ycu arrive at the grille door? A. Yes, sir. I arrive at the grille door. Ms. Tennant was cn the grille door, in a very agitated state..... As I recall, the &or, *en I got there, was open. I would have to say there were definitely officers behind me. I don't know who they were, but I' balieve it would be Mr. Simpson, Mr. Parish and maybe five-to eight other officers behind me, at this point. There were a couple of officers in front of me. The reason I say this is that, upon arriving at the door, it was evident that no one vould be able to enter the unit until we got the inmate and the... what would be classified as "the escorting officers" through that door. I would qualify this by saying that it was my impression that the inmate did not want to come through that door, ard the officers were having difficulty..... Q. You say the officers were having difficulty? A. It was my impression the officers were having difficulty in moving the inmate through the grille door. Q. Wow many officers were trying to move him through the grille door ? A. I can only estimate three or four. I never got a clear lookC at them. Irdeed, I wouldn't... Q. can you identify any of tham? A. No, sir, Icannot identify any of them. I wouldn't have been able to even identify the inmate, otter than I knew it was an inmate... clearly, because he was wearing the blue denim, so I saw h&a blue denim shirt, and his black hair. Q. C&ld you see what the inmate was doing? A. No, sir. His head was bowed. I can only imagine what he was doing... that he was... an analogy would be that, you know, he had the breaks on. He was trying to resist with his body, going through the door. Q. Encountering this situation, what did you do? -._ A. My immediate reaction was to grab the inmate by the hair, with w . . . i~believe my right hand'..... I an not sure, and I believe I also grabbed the scruff of his neck, the collar of his blue shirt, with my left hand. My instinct, at that point, was to pull that inmate with as much force as I could, through the doorway. 'R-IE ARRITRA'IOR: How many other officers were with ycu? THE WITNESS: There were a number of officers behind me. I have no idea how many. ME ARBITRA'DR: Hcky many officers were.with the inmate? Z-IE w1!lNSss: With the inmate, sir? I can only guess that there would be three or more... certainly no more than five. I would have to say three or four. 'lhe reascn I muld say that is that I couldn't get a . - 70 - clear look at the inmate. ll-ere were guards around him, and that there was a traffic jam, or a log jam, at the door. W-a aouldn't get in without getting these guys out. ME ARBITRATOR: &se guys? ME WITNESS: These guys, meaning the inmate plus the officers. Q. Having pulled the inmate, what did you do next? A. Sir, I @led the inmate through. I believe I must have had assistance doing that. I believe the inmate was being held from what- ever angle, or whatever holds... I wouldn't know. All I know is I had a hold... not a very good hold, but a hold on his hair coming through the grille door, and turning to go down the corridor, I lost ny grip of his shirt, which, I believe, was my left hand. This leaving only my right hand holding his hair, and I subsequently lost grip of his hair. Q. What did you do next, Mr. Lcnsdale, having lost your grip on the inmate? A. Well, I must say that this happened all very quickly. They were woceeding down the corridor. There were a number of officers around whim. I could only see their backs. At this point in time I couldn't see the inmate, because of the officers around him. My last view of. the officers and the inmate were that they were proceeding down the hall..... Again, I would emphasize that this only took seconds, and after having my last glimpse of the inmate being moved down the corridor, and knowing that I had already slipped my grasp of the inmate, I tried to ascertain from Ms. Pennant what went down. When'1 say "went down," again we are talking in jail terms. I was trying to find cut what the problem was...;. Sha was saying, thay are not going back in their cells. I believe she told me, at that point, it was a fight. I could be mistaken because I had about three conversations with her, during this, ard .it could have been at a later time that she told me it was a fight. .,. Q. Was the grille door open or closed, at this paint? A. I cannot recollect. I believe it was either closed, or partially closed. The reason that I say it was either closed, or partially closed, is that during my heated conversation with Ms. Tennant, Mr. Garden was in the unit, and yelled at me through the grille door that I should stidc around, that there were definite problems-~ - The griever Lonsdale then described the situation as he found it in the day room. He said "the entire unit was in an uproar," and he anticipated a "riot," pp.1564-1565. As more - 7 l- officers arrived, Simpson became more "authoritarian" and inmates were gradually persuaded to retire to their cells, pp.1568-1570. He was told by Gordon that there was an inmate lying outside on the floor, and "I didn't believe him," pi1571. When Simpson said he would handle Baxter and "did not need 40 other officers around," Lonsdale left the day room. He then saw Stalteri on the corridor floor. He walked past the inmate and had a talk with Gordon at the 5B/C door, p.1572. He had "glanced" at Stalteri and noticed that Lochead and two nurses were there. On December 0, Lonsdale submitted his Occurrence Report, Exhibit 33, and Simpson said it "would be all right," p.1574. It was very brief, stating that "I attempted to help remove an inmate" but "&nee I was not needed... I returned to 5C day area and remained until all inmates were secured in their cells." In his sworn statement, Exhibit 16, given to McMaster at 2.50 p.m. December 10, Lonsdale said: "I tried to help I couldn't they brought the inmate into the hall I still couldn't get to him..... there was more responding officers coming down - the hall so I went into the unit," and just inside the door had a talk with Tennant through the grille. In the statement there was no mention of Stalteri's hair. McMaster asked further questions: - 72 - Q. When you arrived cn the scene tie was escorting the inmate cut of the unit? ;: I don't know. Did you see the inmate? A. I never got a clear look at the inmate. Q. Did you see the inmate after you came out of the unit? A. He was down the hallway on the floor there were guards over him and a nurse~attending tohim. Q. Did you strike or observe any other officer assault inmate STALIERI? A. No I didn't. Lonsdale complained that when he tried to explain what was happening in the unit, McMaster said "he did not want to hear anything about the riot in the unit.;...,'" p.1577. ining Cross-examined, Lonsdale said he had Grade 12 tra and a year at Centennial Community College. He also worked "six hard, long years to achieve the belt of Shodan," which he explained is the lowest level of the black belt in Karate-doh. He had passed through six lower levels before attaining the black,, p.1580. Lonsdale denied assaulting Stalteri and said he had not seen anyone else assault or hit the inmate, p.1581. He could not even recall seeing either Proctor or Davidson, p.1581. - The griever also said he has worn a beard from time to time, but did not have one on December 7, p.1583. - 73 - Asked to explain the brevity of his Occurrence Report, Lonsdale said, p.1584: tiring my course, it was drilled into me to keep it.<. I believe the phrase was "the kiss formula"... keep it simple, stupid!.., Therefore, I made it as concise as possible, but still detailing that I was up there, that I attempted to help the situation, and that I went into the 5C area. I don't see where any more detail could enter into it, sir. The grievor explained his action at the 5CW door as follows, pp.1592-1593: i 'Ihey couldn't bring him out, sir. That's my point. Had they ..been free-wheeling him through that door, I wuld have no need to do anything, lxt they could not get him through that door, &ich posed a serious Foblem, because we could not get into the unit... and I might say that my impression would be that the inmate, Stalteri, would be surrounded by guards, meaning that there would beguards backs to the inmates who were in the unit, and they could get hurt, if we oould not get through that door, to assist them. T-E ARBI'IRATJR: Was he struggling? THE WITNESS: My impression, sir, was that he was,struggling... &finitely, and I wxld base that on the fact that the four officers . . . three or four officers could not move Stalteri through that door., At least, in my impression, they were having a great deal of difficulty in doing so. Q. Okay... so you decided to grab a hold of his hair? ;: I grabbed a hold of his hair, yes, sir. And then what did you do? Did you pull it? ;: Oh yes, sir, I pulled, and I believe... What did you do with the otter hand, again? A. I believe I used my right hand to grab his hair,,. and my left hand to grab him by the collar. .~ Q. Okay. Ard then he comes through the grille door? A. With some effort, sir, be came through the grille door, yes. - 14 - At p.1612 Lonsdale said: i did not learn that it was an inmate fight until after, I believe, the inmates had been locked up, anTwe got into a very heated discussion as to why she would press a button only because of an inmate fight..... Q. oh, with Ms. 'Dxnant A. With Ms. Tennant, yes. He also said that his view of Stalteri lying in the corridor was through the grille when the door was part open, pp.1616-1617. At pp.1622-1624, Lonsdale spoke of the testimony given by other witnesses:. - Q. Can ycu think of any reason ,why proctor would deliberately lie, or fabricate testimony about you striking Stalteri? A. No, sir, nor can I tier-stand why Mr. Davidson said 1~ struck the inmate twice with my fist, and twice with my feet, and yet Mr. Stalteri doesn't even remember me. Q. But you have got a beard co now, haven't you? A. Sure I have a beard on, but my official pictures at the jail has a beard on, too. Q. It doesn't matter. Ycu still had a beard on when Stalteri was here to identify the people, didn't you? A. Sir, obviously I had a beard on, yes, sir. Q. Sure you did. A. But sir, if somebody pinched and kicked me twice in the face, beard or no beard, sir, I would recognize them when I an abxt two feet away from them. Q. Well... maybe... ?.xt you also know that when inmates are in the institution, facing charges, tbay are not allowed to change theiir appearance, are they? A. I am not in inmate in an institution, sir. . . . - 75 - Q. lie... no, ht are inmates allcwed to... A. Ad my appearance, since I am not under the orders of the Ministry, I will have whatever appearance I deem fit. Q. Fair enough.., that's fair enough. m. CAVALUJZZO: To be fair to the witness, of course, the inmates fingered "red"', ard somebody with a beard, so the fact that he grew a beard does not demonstrate that he is trying to hide anything. 'IBE WITNESS: If anything, I would suggest that I would not grow a bsrd, with evidence such as that... Q. So you would also say that Mr. Davidson's statement that you kicked the inmate, ad hit him with your fists, is not true. Is that your statement? A. Yes, sir. As I testified before, I wxrldn't believe anything Mr. Davidson said and I cannot see anybcdy in their right mind doing F' New, what abxt Wr. Cathar? Would you believe what Wr. C&her said? A. Yes, sir, I wxld believe what Mr. Cather said. Further testimony on this point was, at pp.1627-1628: Q. New when I read that, I get the impression that you were there with the inmate when Cather opened the door? A. No, sir. I really... as I have said sir, tiat Mr. Cather is painting out here is that, after I had been dismissed from the unit. As I stated, I walked by the inmate, and that is where I believe Mr. Cather saw me, and I have made no bones abxut it... yes, I stood there, with the inmate, and I also stood there a little longer at * the 5B/C door having a conversation with Mr. Lochead and Mr. Gordon. I don't recall Mr. Gaston being there, but prhaps he was. As I said, I felt that the other officers in the unit wxild have made the same assumption as I, that we had been dismissed, and muld be trickling cut of that unit, so it would be fair to say that he pobably wxld see me there. But this, sir, wxrld be well after everything had all been quieted down inside the unit, and I was leaving that said unit. 7 Asked by his counsel whether he used Karate on Stalteri, the witness replied, at p-1632: “NO sir, I did not use Karate. . . . am not Bruce Lee." - 16 - Lonsdale was also questioned about his failure to identify any officer escorting Stalteri. This occurred at the conclusion~of his testimony, pp.1632-1634: - ME ARBITRATOR: Mr. Lcnsdale, as I remarked a moment ago, you have been with the Ministry since 1977. THE WITNESS: Yes, sir. Cecembar 8, 1977. THE ARBITRATOR: All the time at the Metro East Cfntre? ME WITNESS: Yes, sir. ME ARBITRATCR: So that M December 7, you have been there almost exactly five years? IBE WITNESS: When I was suspended, sir, it was exactly five years,* to the day. IHE ARBITRATOR: Five years... yes. So that I suppose, most of the officers in the institution you kould know? 'IBE WI'B'IESS: There is a group that I would know, sir; however, the staff turnaround there is... there is quite a lot of staff turnaround, so I would not... 'IBE ARBI'IRAIOR: Yes, I realize that, but you would know most of them, wxlldn't you? IWE WITNESS: Yes... yes, sir. I wxld.~ !J.HE ARBI'IRAKR: Wall, doesn't that mean that if you saw four or five officers trying to remove an inmate from a unit, that you would probably rewgnize at least ane of them? .,, "IBE WI'lWfSS: lb be fair, sir, and to be perfectly honest, no, I wxldn't. Given the situation that we were in, I wxrld not be even looking at the officers... only conscious of what they were doing, and if in any way, shape, or form that I could help. Secondly, sir, I war glasses to drive, but since I do not cover... my duties do not include covering at the grille, therefore I do not need my glasses to see any distance. I conduct my interviews with the inmates on a one-on-tee basis, and I complete applications... I do not need my glasses, and without them, sir, you are considerably blurred, and I can only state that, as funny as it may sound, sir, given the situation that we were in, that is why, but I clearly did not recognize anybody, sir. MR. ROBINSON: Ycu didn't have your glasses on during this whole thing, then? - 77 - 'IRE WITNESS: Oh, no, sir. Wren I drove... being T.A.P. Officer for eight months, I drive in with my glasses, and I leave them in ny office, since I don't need them to get &cut the institution. Now, if I were called to cover... like... tien I say "cover", look at somebcdy who is in... my partner who is in the grille, I wzuld not -do so unless I had my glasses because there would be no way I would be able to see him. !K-IEARBIlRA'IOR: Y~J mean you went upstairs that day without your glasses? WE WITNESS: Being T.A.P. Officer, sir, for the last eight months, I never took my glasses upstairs... very rarely..... lhat particular day, sir, no, I did not. It's a matter of record, &en I started, that I needed glasses. Notwithstanding his explanation, the Board finds it difficult to understand officer (except Tennant ) had been there exactly f that Lonsdale would not recognize any' in the vicinity of Stalteri. Lonsdale ive years: Davidson three and a half years; Gordon almost two years: D'Andrea about two years: Proctor and Davidson were with Stalteri, probably also Fitz- William , who --- according to Tennant --- entered the unit with Davidson, p.550. Of five officers at or near Stalteri, not one has been identified by Lonsdale. Glasses or no glasses, it is remarkable what he failed to see. Of course the same can be said of at least eight wit- nesses called to testify by the employer's representative. To a lesser degree, it can also be said of the three other grievors whotestified. . . . - 78 - An argument can be made that Lonsdale's proficiency in Karate would explain some of Stalteri's injuries. On the other hand, it could also be argued that the rigorous exercise - of self-discipline required in intensive Karate training makes it unlikely that his skills would be used with such cruel and wholly unnecessary results. The issue here is whether it has been proved by con- vincing evidence that Lonsdale used excessive force when he came into contact with Stalteri. Against Lonsdale's denial, there is only the testimony of Proctor, Davidson and Cather. What was said by the first two has no support from Tennant, Simpson or Parish, who were cer- tainly at or near the door when Stalteri was brought out. It is perhaps an indication of Lonsdale's veracity that he admitted pulling the inmate by the hair, although Tennant, Simpson and V. Parish had said nothing about that. The Board is not so naive as to accept Davidson's version --- or that of Proctor. Cather's evidence is vague and so lacking in very im- . . portant details that it is doubtful he saw Lonsdale and Gaston immediately after Stalteri fell. He undoubtedly saw them at - 79 - some point; in view of his reference to Simpson, it was probably a few minutes later. Although the Board is far from satisfied with some aspects of the grievorts testimony, there are insufficient grounds for concluding on the balance of probabilities that Lonsdale participated in inflicting Stalteri's injuries, and his grievance against dismissal on the first charge must succeed. IV EVIDENCE RELATING TO THOMAS GASTON The grievor Thomas Gaston was a probationer in December, having worked at the.M.T.E.D.C. from June, 1982. Previously he had two and one-half years' experience as a Correctional Officer at the Calgary Remand Centre. For whatever it may be worth, ~ he was one of the four grievors visually identified by Stalteri at the hearing of May 20. Proctor's evidence at pp.343-344 has already been quoted. According to him he was met by several officers inside the day room: Lonsdale was the first to strike-Stalteri, Gordon the second and Gaston the third. Proctor said, at pp.344-345: - 80 - Co1 Gaston, struck the inmate twice. First with the left hand, then with the right hard. It was just a left and a right, and I can say, is he just grabbed his hair with his hands, brought the inmate's head down and kneed the inmate in the face..... It was just, a left, right and a knee. I was pulleddown. I saw the knee strike the inmate right in the face. 'IHE ARBITRA'IGR: Ycu were still beside the urinals? THE WITNESS: I still... no sir. I had moved... I was right at this point on the wall. I just saw... at the eighth cell, I timed and I caught a glimpse of the urinal. I moved to the edge of the opening, along the wall M the outside, ard down. I was right in about here, is ths last thing... the last point that I can place myself, before the inmate was struck. After that, the inmate was grabbed by the hair and pulled down. The knee struck the face. My head was down. It was down and that is all; I was just trying to get the inmate out of the unit. There was noise coming from the back of the unit. I kept my head down. I tried to push the inmate out. Of course Proctor also recalled seeing Davidson and Fitzwilliam --- and then, without seeing well he was out the door, still holding Stalteri. He then described blows by Bedeau and the two kicks "to the face" by Fitzwilliam on the way down the hall. After that he said, "the inmate just went limp," pp.351-352. Later he added.'at p.353: "It was bang, he is limp. then there was another kick and he just fell to the floor." Again, at p.354: "After that point, when he fell, just like... he is on the floor. I turned around. I headed straight back to the unit." He then gave a description of inmates rush_ing against the door, p.355. - 81 - After the tumult subsided, Proctor walked east in the corridor and saw "the heavy blonde nurse" (Brandham) on her knees with Stalteri. He made other interesting observations, p.362: She was just saying: What happened? What happened? '#ihat happened?" I just looked down at her. I turned around. I looked back, and sometidy had a towel in their hand. Iha officer's name, I don't know. But he was rubbing the blood off the wall..... Q. Blood being wiped off the wall. Which wall are we talking abaIt? ;: 'Ihat would be the cutside wall it would be this wall here. Where was it? Wnere were they wiping? .A. It would be about five feet off the floor. At p.370 Proctor repeated that "CO Gaston was the third officer in the unit. CO Gaston struck Stalteri, with his left hand and his right hand and then grabbed the inmate by the hair and kneed him." In cross-examination Proctor put certain limits on what he could remember. This curious passage at pp.408-410, is as follows: 0. YOJ did describe a number of blows that landed on his face -~ and kicks. I described the first second sir, and the last second. Ycu are profcund, Mr. Proctor. Ycu had better try that one again. - 82 - Sure. Ycu described the first second and the last second? ;: Yes, sir. Bscause that is all I knew. What do you mean by that, you described the first second and the last second?.. A. All I saw, was the very beginning. All I can state specifically, is what I saw at the very beginning, and what I saw at the very end. Q. Well, are ycu saying, that as soon as you grabbed Stalteri, you have forgotten everything? That is the first second. %: okay, ths first seosnd that the officers arrived. That is when you forgot? A. I did not forget anything that I can recall. Cxxld you please be more specific? TEE ARBI'lRATOR: Well, I thought you gave us a play by play account of blows, given by a number of different officers. WR. CAVALLUZZO: Yes sir, that is what I thought too. 'IHE WITNESS: Yes sir, I did; It was just the very beginning of the time when the officers arrived; and the very end of the time, when - the officers left the inmate, including myself. That is what I * described. If that passage is taken seriously, it must mean that the blows allegedly struck by Lonsdale, Gordon and Gaston were all in "the first second." As for the "last second" he mentioned Bedeau and Fitzwilliam , but not Gaston. .i Proctor's testimony at p.418 has already been quoted. That was when he asserted that "never in a million years" would he ever waiver in his evidence about Gaston and four of the other grievors. He did not include d'Andrea in this select company. - 83 - ,.: .’ ‘. . . - At p.423 Proctor repeated: "The third person in the unit was CO Gaston. He struck the inmate with a left hand and a right hand. Then he grabbed the inmate by.the hair and pulled - him down." Davidson's evidence about the assailants has already been quoted. Although Proctor and Davidson admit having con- sulted each other for several hours on the nights of December 7 and 8, there are significant differences between their stories. .Proctor said Lonsd,ale struck first: Davidson said Lonsdale was fourth. Proctor said Gaston was the third to strike Stalteri; Davidson said Gaston, not Lonsdale, was the first. Davidson said D'Andrea was the second to hit Stalteri: Proctor said D'Andrea was not involved at all, p.382. Davidson said Gaston "kneed the inmate in the face," p.1253. Proctor said Gaston "struck the inmate twice, first with the left hand, then with the right hand. It was just a left and a right, and I can say is, he just grabbed his hair - 84 - with his hands, brought the inmate's'headdown and kneed the in- mate in the face..... I saw the knee strike the inmate, right in the face," p.344. Proctor testified he was alone bringing Stalteri at least half way to the door. Davidson said Proctor was being assisted by an officer named Bradley --- which is not supported by any other witness. Proctor thinks he could have "made it" to the door * without help. Davidson is sure he needed assistance in restraining the inmate. According to Proctor. the assaults by Lonsdale, Gordon and Gaston occurred within the day room, before reaching the door, pp.343-345. Davidson said it all happened just outside the'door, but in view of the inmates, p.1254. Having regard to !'- the noisy inmate protests which erupted immediately, it is clear that on this point Proctor's version is to be preferred. It can be easily understood that memories could be faulty or confused when the assaults were in circumstances of such stress, excitement and also fear. What is deplorable - 85 - about the testimony of Proctor and Davidson is that they pre- tended to give a very detailed factual account of exactly what happened, blow by blow, kick by kick, and move by move. The result is that their two versions cannot be reconciled, although it is probable that what they said is true in part --- but only in part --- and that parts are false. If they had related with care what they actually remembered, instead of attempting an elaborately detailed reconstruction (apparently designed to clear themselves) their evidence would be of more value. Notwithstanding their lengthy consultations, neither man trusted the other, which explains the inconsistencies and contradictions in their test;- mony. Davidson has indicated that he trusts no one and Proctor testified as follows at pp.404-405: Q. A. Q. .;: ;: A. Q. A. Would you believe Mr. Davidson, urrler oath? No sir. You would not? No sir. Okay. And he is a close friend of yours? I would not call him a close friend, sir. Closest officer at tha institution? I would say that Mr. Davidson and I, had a good working relationship. Okay. f3t in any event, you would not believe Mr. Davidson under oath? I muld say no, sir. . Several other witnesses called by the employer testified ,- to the same effect, i.e. they do not believe Davidson's stories. - 86 - Proctor also spoke of his relations with Gaston. Referring to the night of December 8, Proctor testified, pp.. 378-381: I do not have a telephone. I live down the street. TIE number which I leave at the jail, is my parent's phone number, because I don't have a telephone. 11:50 that night, co1 Gaston phoned UP. AxI he read me... he wanted me to say: "Remember me? I put him in a head lock. Remember me? I pit him in a head lock." And he read me the last statements, that he had given to ths police. "Did you see anyone else in the hall?" "No." "Co Proctor in the hall alcne. I believe so." "Was tt-e inmate injured when he taken into the hall?" "No." . . . . . Q. So you had this conversation with Mr. Gaston? A. Yes, sir. He was trying to have me say: "Remember me? ,; Remember me? I was the cne that put him in the head lock. Remember me? I was the cne that helped you out into the hallway with him." Then he proceeded to read me. He said, about... he told me something about: The last ten questions the police asked me, were about ycu." "Was the inmate injured when you took him into the hall?" "No." "Did ycu see anybody else in the hall?" "EJS. II “Was U-&inmate secured when ha went into the hall?" "Yes." Q. Hew long did this conversation last? A. It only lasted about five minutes. Proctor had a meeting with Gaston in a pizza parlour on December 20. His 'testimony was as follows at pp.464-466: Q Why ware you meeting Mr. Gastcn cn that occasion? A. I was meeting Mr. Gaston on that occasion, sir, beCaUSe Mr. Gastcn phoned me up... . . . . . - 87 - I A. I was meeting Mr. Gaston on that occasion, because Tom is an individual I like. I stated to Tan at that meeting with him, I said: "Tom, months from now, nobody will even know who you are. 1' Q. Pardonme? A. I said: "Mcnths from now, nobody will even know who you are." I did the talking. Mr. Gastan did the listening. I told Mr. Castan that the only thing to do, his only chance, was to go in and tell the truth. LXn't flower it, don't change it. Put in what you did. Put in what others did. And say why. And Tom said... he pulled out the policeman's card. And Tom said to me: "I am scared." I said: "Torn you wx't be alane." Q. Yes? A. Then he got in the scar and drove away. We had a pizza and we had a discussion about Hilly Seppi and Zibrotoysky. . . . . . I said: "Tom, go in, tell the truth. Tell it straight. Tell what happened. Tell tiat you did. !Wll what other people did." whether he did or not, I don't know. Q. Yes. Of course you knew, that what he told the police, that he had not seen you strike any individual at all? A. Yes, Sir. On that occasion it is possible that Proctor was taking advantage of the fact that unlike other officers, he has a B.A. from the University of Toronto. The witness Semple,. a recreational officer, said it was he who volunteered to get a wheel chair for Stalteri from the medical unit on the second floor. He said an officer accompanied him and he believed it was.Gaston, pp.724-725. This was confirmed by Gaston in his testimony, p.1676. - 88 - There is significant testimony by CO2 Derek Miller at p.1039-1040 of the transcript: I proceeded into 5C West unit. As I was going in inmate Stalteri..... was being escorted cut to my right by several officers. At the same time... three inmates confronted me... shouting "That's not fair! That's not fair! What's going cn?" . . . At that point I was looking at tbs inmates. Miller was questioned again on this point at pp. 1046-1047: Q. 'Ibase officers that were with the inmate in the unit, that were escorting the inmate out, did you rewgnize tie any of tham were? A. I remembered-CO's Proctor and Gaston..... There was a cluster of officers tbare... everything was happening fast, and I could only remember those two. Q. DO you recall &at Proctor and Gastcn were doing, at this time? A. No, I don't. 'key were with the inmate, and, as I said, there was a cluster tiich means several officers, with the inmate. At p.1057, Miller denied seeing "any punches thrown." But the inmates were in a "riotous mood:' p.1043, and "Yes, they talked about a beating,"p.l051. The evidence of J.R. Cather must not be overlooked. . . . - 89 - I As previously explained, he noticed (through a window) a party of officers approaching swiftly eastward in the SC corridor. After using his key .to open the 50/C door, he saw an inmate on the floor, obviously injured, pp.1134-1138. Asked if he saw any officers, he said: "There were a few officers around there I did recognize..... I think there was Correctional Officer Gaston..... Lonsdale, I believe, was there," p.1139. However, in his statement of December 13 he had said there were "five or six officers there." He was vague about other important details and about the time. Gaston's Report Before considering his testimony it would be well to review Gaston'sOccurrence Report and the sworn statement he gave McMaster. . . . The Occurrence Report, Exhibit 32 is much longer than those filed by other officers. In the first two paragraphs he referred to a slight delay in reaching 5CW from his post on 4C. The Report continued: Upon arriving at 5CW I observed c/o Froctor attempting to restrain an i/m with what appeared to be a double arm bar - 90 - from the rear the i/m was struggling. I immediately replaced the inmate in a headlock and started pulling him from the unit uprn getting clear of the unit into the hallway. Iwas aware that their was still a serious problem in the unit so knowing the i/m was secure, I returned to the unit to further assist. lhei/m'swere secured in their cells after much rebellious argument by order of i/c Lt. Simpson. After securing tha i/ms in the unit I ret/d to the hallway and found that the i/m had suffered injuries and Mr. Lcckhead ms bending beside him. 5% nurse hadbeen summaned. After bar inspection she requested a wheel chair. Mr. Icckhead requested my help in this matter and we then both went to the medical unit to get a wheel chair. I obtained the wheelchair and returned to the fifth floor with the wheel chair. Gettim the i/m on the wheelchair I wheeled him to the medical unit, and finding myself no lcnger needed ret'd to my unit. The,above Report purports to have been made at 12.-25 p.m. on December 8. Gaston's Statement On December 9 McMaster took Gaston's statement between 1.45.p.m. and 2.25 p.m., Exhibit 17. It-is worthy of reproduction -- in full: Q. Where.were ycu assigned on December 7th at the time of the code anncuncement? A. On 4C unit. Q. Tell me your involvement in the matter upon your arrival on 5C? A. khan I got to the fifth floor the female officer pointed to 5C and said "it's down thare" or something like that. UpOn arriving on 5C unit the female officer opened the grill on 5C West on immediately I - 91 - entering the unit, I saw C.O. 2 PRGC'IOR struggling with an inmate holding him from behind. 'Ibay ware both doubled over, this was about 10' from the grill. At this time I saw that the other inmates were crowding the situation with Mr. PROCTOR and the inmate. At this point the only part of the inmate's body open to me to assist Mr. PPKXTDR was from the top of his shoulders to the top of his head. I then grabbed the inmate in a headlock, I then heard a loud noise from the inmates and we than pulled him out of the unit (the only other officer I was aware of at this time was Mr. PRCC'IDR) into the hallway. I want maybe 10 paces east in the hallway I looked back at the unit and saw therewasstill a serious problem there. I was aware of other officers around me, I looked at Mr. PROCIDR saw that he had a secure armlcck- cn the inmate I released the inmate from,the headlock anl returned to the 5C unit to assist in a show of force. Q. Was anycne else assisting Mr. PFXXTOR in the unit? A. When I went through the gate there was only Mr. PROCIOR and myself holding him and we had control of him. Q. Whan you first saw'STALl%RI was he injured? aA: I don't know his face was down. When you got into the hallway did you observe any injuries? * A. No. Q. Did you observe any staff assault STALlERI? A. No. Q. Did you ev&tually become aware that he was injured? A. After the inmates in the unit were secured. Q. What did you observe when you realized he was injured? A. I was leaving the area I saw him laying on the floor on his left side. I saw a split lip when he was turned onto his back there was blood on the floor. Q. When ycu left to retirn to the unit who was with him besides Mr. PFXTOR? Q": Other correctional officers. .,. Is there anything further ycu can add to this statement? A. Just that I took him down to medical area with the nurses. Q. Did you get a good look at him then? A. He was holding his face in a towel. It is apparent that Gaston,,unlike others, promptly - .admitted he had "grabbed the inmate in 'a.headlock" and that this was followed by "a loud noise from the inmates." Nevertheless, - 92 - he failed to mention other important action he took which emerged in detail during his testimony on June 17. A curious feature ofhis statement is that he was at that time --- within the day room --- aware of only one other.officer, Proctor. Gaston's Testimony This griever testified that "as we responded" Tennant opened the door and he entered. Tennant, however, had testified that the first to, enter were Tucker and Proctor: She then mentioned Davidson and Fitzwilliam , adding "I believe they were the first two in the line," p.550. She also said that by the time Stalteri neared the door there was a "wall" of officers around him: "To me, it looked like..... just sort of a wall. The only thing I remember about them taking him out of the unit was that my foot was stepped on and I remember seeing CO2 Davidson. I was just thinking "you idiot" to him..... I was not sure..... it could have been anybody coming out of the unit," pp.555-556. Tennant did not mention Gaston. Nor did Simpson, Parish or - Semple when describing what they saw at the door. : - 93 - Gaston himself is positive that he entered as soon as he could and went to the aid of Proctor. .'His account, at pp.1640-1644, follows: - Q. Did you enter the unit? A. Yes I did, sir. I hesitated a moment, to assess the situation inside tha unit. The very first thing I observed was Mr. Proctor doubled over M top of an inmate, kklo was apparently either trying to free his grasp, or flip Mr. Proctor..... MR.ROBINSCN: Flipping, meaning over his shoulders? Z-E WITNESS: Yes. Mr. Proctor had both of his arms behind of his back, anl he was struggling to gain a secure hold on the inmate. I also observed what appeared to be a half moon of inmates, and they seemed like they were doing a "ghost walk", getting closer without moving their feet. 'Ihat's a guick~impression. That's the way I... Q. What do you mean by "half moon"? A. Ihey extended behind Mr. Proctor, towards the 'IV set, and along the side of him, towards the grille door, but not guite at the grille door. -There seemed to be may& ten, twelve, again I use that, inmates..... They were getting closer an3 closer to Mr. Proctor, and inmate Stalteri..... At that point they ware not rushing, no. Q. What did you do, Mr. Gastcn? A. As my evidence indicates, the,most serious problem at that time was Mr. Proctor, and inmate Stalteri, so I rushed forward and the only point of his body that was open to me was his... the top , of his head, and his shoulders, as he was about two and a half feet, three feet, off the ground ax3 bent over that close to the floor. I tried to pull him up with my hands..... and that didn't work, so I let my body momentum carry me forward, I slid my knee underneath his shoulder, and I jerked him straightup.~.. I grabbed him on either side of the head, by the shoulders, and I tried to push him up, ard he wouldn't come up. I guess the ~ambined weight. I don't know..... Q. Where did you put your knee? A. My right leg, I slid urderneath his--left shoulder., It was more or less like a bodyslam, I guess. I spun to my right, and I placed the inmate in a headlak, and bolted for thedoor. Q. Okay. You placed the inmate in a headlock. Is that on the right side, or your left side? - 94 - A. I swung to the,right so I had his head in my right arm, holding my right hand with my left hand. Q. where was Mr. Proctor, at this point? A. We was behind the inmate... directly behind him. I don't know tiat he was doing. I wasn‘t concentrating on him. Q. Were there any otter Correctional Officers present at that - point? A. lhxe may have been. I was concentrating cm getting out of there. - Whatever it was that Gaston did, he makes clear that it brought an immediate reaction from the inmates who had been quietly doing a "ghost-walk," p.1644: I remember, right after I straightened him.out, I heard a roar from the inmates. It was like a cafeteria when you walk in during pxk tsxr... all you can hear is 50 million people talking at one time, and it's just a big noise. Gaston was aware of other officers blocking progress at the door but could not identify them. He added: "I know that later on when I let go of him in the corridor there was officers holding on to him,“ p.1646. This griever remained with Stalteri for some distance along the corridor. The party was again impeded, he said, "in front of the inactive area," p.1647 ----which is near the spot where Stalteri fell. Gaston described the scene as follows, pp.1647-1650: - 95 - Q. Now you began to move the inmate down the hall? A. Correct. *e again, I concentrated on the movement, the travel of the innete towards the segregation area. I remember, again, becoming conscious when our movement was impeded again by officers. .- Q. Ad where was that? Where was your movement impeded again? A. I later realized, from other stuff I will get to, that it was in front of the inactive area. Q. Why did you become conscious of the presence of other officers? A. I was aware of a flurry of arms grabbing for the inmate from other officers. Q. Were ym conscious of who these officers were? A. No, Sir..... It was a flurry of arms, grabbing for the inmate... black, white, olive-skinned, you know, white, black, Italian. Imnediately upon looking up, the first person I observed in a group still responding, of about eight officers, was Mr. Eedeau. Q. Did you have a grip on the inmate at this time? ;: Yes, sir. I still had him in a headlock. Did Mr'. Proctor still have a grip onthe,inmate? Did he have a grip on the inmate? .A. Yes, but I wasn't aware of that at that particular moment. My reaction was I became aware of the noise, again, and the commotion going cn arcund me, and I looked back at Mr. Proctor, and I saw his face was white, and his mouth was hanging open, and I looked past at a group of guards crowding around the grille, ten or twelve again, and their faces were the same as Mr. Proctor's. They were white. I then looked back at Mr. Proctor ard I saw that he had a secure grip on his arms; from behind, .so that his arms were almost up in his armpits . . . the inmates armpits, ard if the inmate had done any- thing extremely violent, he would have dislocated his shoulders. I then thought to go back to the unit, so I released the inmate, and ', cn turning I saw Mr. Fitzwilliam, who was approximately three feet to my left, in front of the inmate, and I remember it was the in- active area, because when I turned away from the inmate... Q. Slowly, please. i : Sorry. Ycu released the inmate? A. Carrect. Q. On turning, you saw Mr. Fitzwilliams? A. Mr. Fitzwilliam. Q. Continue, pleaser A. In completing my turn, I remember looking directly into the inactive area. Q. Then tiat did you do, sir? - 96 - A. I ran back to the unit, and I was on the tail-end of the group that I saw standing there, proceeding into the unit. There was other officers running beside me, from the group that I saw running up the hallway when I let go of the inmate. Q. Did you enter the unit at this time? A. Yes, I did, sir. In cross-examination, Gaston said that when. he first entered the day room the inmates were moving but they were quiet, p.1671: Q. L?c you recall the inmates saying anything at this time? A. They were quite silent, and intently staring at the struggle between Mr. Proctor ard Mr. Stalteri. Q. Was the inmate saying anything during this struggle? A. Not that I an aware of, sir. Q. Would it be fair to say that the inmates were simply watching this struggle? A. Not watching... intently staring. Q. I am sorry? A. Intently staring. Gaston denied that he struck the inmate with his knee; he "used my knee, as a tool of leverage, not as a striking object," p.1672. The cross-examination continued at pp. 1673- 1674: Q. Ycu just gently lifted him up? A. Not "gently", sir... guite harshly. Q. Why did you find it necessary to do-that? A. Because he was attempting to flip a fellow officer, thereby directly endangering his safety. Q. Okay... but I would have thought, to put somecne in a headlock, that ycu would want their head down quite low so you can reach down and grab a hold of it? .,_ - 97 - A. In order to place him in a headlock when I first saw the inmate, I would have had to go down on one knee. As I stated, his head was only two and a half feet, three feet from the floor. He was almost doubled right over. Q. Okay. Did ycu ask Mr. Proctor if he needed any help? A. No sir. Ycu don't ask. YCU assess the situation. That's &at you are trained for..... Q. Now &hen you placed the inmate in the headlock, were there any other officers with you at that time, besides Proctor? A. I an not aware of any other officers. 'Ihare may have been other officers. At that initial point where I contacted the inmate, there was M other officer besides Mr. Proctor. The griever was further cross-examined at p.1693: Q. Are you sure you weren't with the inmate when he was droppad,.to the floor? :: I am positive, sir. Mr. Proctor has told us in his testimony, and in his statement, that you .struck~~Stalteri twice with your fists. Is that true? 2 No, sir. Mr. Proctor also told us that you grabbed Stalteri by the hair, tith both of ycur hands, ard kneeI'd him in the face. Is that true? A. No, sir. Q. C;n you think of any reason why Proctor would deliberately lie, or fabricate testimony about ycu hitting Stalteri? A. 'Ihe age old practice of C.Y.A. THE ARBITRAIDR: The what? < TEE WITNESS: The age old practice of C.Y.A. It means "cover your .A_ ass", sir. 'IHEARBITRATCR: You man on his part? 'DIE WITNESS: Yes, sir. Gaston further asserted, at p.1694, that when he next saw the-inmate (a few minutes later) Stalteri was on the floor about 20 feet east of the point where Gaston left him. He also denied ever punching Stalteri in the eye, p.1695. - 98 - Gaston's explanation for his meeting with Proctor simply was that "I was trying to find out why I got in the process of being fired for doing my job," p.1697. The essential elements of Gaston's testimony have been reviewed above. His account was not materially changed by cross-examination. There is no evidence that Gaston participated in the attacks on Stalteri in the corridor --- except that he still had the inmate in a headlock when some blows were struck. The important evidence relates to what occurred within the day room, and it is the evidence of Gaston himself. Even if the dubious testimony of Proctor and' Davidson -3. be disregarded, it is clear that up to a point the other inmates were staring --- intently but silently --- while Proctor moved Stalteri toward the door. They were also moving closer in a way which frightened Gaston. The fact remains that Gaston and Proctor are tall, powerful young men, 'obviously capable of _ .~ coping with a smaller man like Stalteri. And if other officers were not yet there, they were certainly not more than a few steps away. - 99 - The most significant fact has been related by Gaston himself. As soon as he made contact with Stalteri, there was a general uproar. Worse, the other inmates became belligerent and several tried to rush the door, where Tennant needed assist- ante from others to close the door against them. It may be that other officers made contact with Stalteri about the same time as Gaston did, but he does not recall it. By his own acCOUnt, his vigorous approach with hands, arms 'and knee, provoked a roar of protest and created a highly dangerous situation. The Board suspects that the inmates may have been willing to "stare" in silence as long as Stalteri was struggling with only one officer, a "one-on-one" contest. It is significant that the inmates' wrath does not seem to have been directed at Tucker, who was in a vulnerable position but who had managed .A. to subdue Baxter all by himself. The moment Proctor received at least one reinforcement --- perhaps more --- the inmates began shouting "It's not fair! It's not fair!" And at once there was a menacing rush toward the officers and the door. As Gaston was more open and candid in his testimony than many of the other officers present on the occasion, the - 100 - result is regrettable. In the Board's view his own account of the facts is sufficient to establish that he used excessive force to overpower Stalteri within the day room. As for the assaults in the corridor, when he saw what was happening he made no attempt to stop the mayhem but released the headlock and hurried back to the day room. From the moment he emerged. .into the corridor it must have been apparent to him --- and to others --- that there were more than enough officers to "restrain" Stalteri and that in fact the man was helpless. The Board recogniz'es that for a few moments there were extenuating circumstances. Gaston was a young and relatively inexperienced officer suddenly thrust into a tense and hostile situation where officers were greatly out-numbered by inmates. He may have believed that Proctor was losing control of Stalteri; the fact is that Proctor had brought the inmate most of the way to the door without losing control. Clearly Gaston could have rendered assistance without using such violent methods. Perhaps it is unfair to pass judgment long after the event, but Stal- teri's injuries suggest that Gaston and others were carried away by a sense of panic --- and lost.cpntrol of themselves. It is of great importance that correctional officers exercise self-control at all times, and particularly in an - 101 - emergency. Stalteri did not represent a serious threat and it was the treatment he received which transformed a minor emerg- ency into what most officers seem to have regarded as a crisis. They were too easily terrified. The decisive steps taken by Lieutenant Simpson soon restored order and not a single officer was hurt. As for Tucker, he is to be commended for remaining calm and self-possessed when he was more exposed to danger than anyone else. At the risk of repetition, it. is extremely important that, according to the grievor himself, the uproar in the day room arose immediately after he made contact with Stalteri. It was that uproar which frightened other officers at the door --- and those waiting to come in. Having regard to the circumstances and the evidence, particularly that of Gaston himself, the Board is persuaded that he did in fact use excessive violence against the inmate Stalteri. The suspension and dismissal were for just cause and must be upheld.. - 102 - V THE EVIDENCE RELATING TO VICTOR BEDEAU Bedeau's version of his role in the affair of December 7 is to be found only in his Occurrence Report, Exhibit 30, and his sworn statement to McMaster, Exhibit 11. The Report, apparently written at 12.30 p.m. on December 8 .' is very brief. It discloses only that from the Segregation Area he responded to the SCM code, that he saw an inmate "being escorted by a number of officers," that someone said it was "a fight in the range," that he.heard Simpson : talking to inmates, and that after they retreated to their cells he returned to the second floor. ~There is little more information --- but not much --- in the statement Bedeau gave McMaster at 3.05 p.m. on December 9, Exhibit 11. After repeating what he said in his report he answered some questions: Q. Did you see the inmate clearly upon your arrival on the floor? A. No I couldn't see him because he was being held in a forward position. Q. Did you assist in escorting this-inmate? A. No. Q. Did you strike or see any other officers strike this inmate? A. No. Q. What staff were in the range when you entered? A. A lot of officers Mr. SIMPSON, Mr. PARRISH, Mr. 'HJCKRR, Officer HIGGINS that's all I can remember. I.., I . . . - 103 - Q. Did ycu see the injured inmate? ;: Yes I saw him on the floor being attended to by a nurse. Do you have anything further to add to the statement? A. No that's all I know. Six witnesses referred to Bedeau, although not all claim to have seen his punches find their mark. Stalteri identified Bedeau visually at the hearing of May 20. He said Bedeau hit his head and face outside the unit, p.55. However, on December 9 he had sworn to McMaster that he could not identify his assailants, because "everything happened so fast," Exhibit 8. Proctor of course named Bedeau when describing his journey along the corridor, at pp.347-351: I was just moving, moving down the hall. It is like, you are in a group of officers, and then all of a sudden, you are clear. Like .,. it was not dark, it was not light. It was sort of in-between. Ycu are clear, moving down the hallway. Then, all of a sudden, it was just bang. It was like I just ran into an object. There was a fist that wt bang and his CO... inmate Stelteri on the left side of the face. I looked right up, and I looked right into CO2 Bedeau's face. IHE ARBITRATOR: Co Bedeau? THE WITNESS: CO2 Bedeau..... Q. Okay, Mr. Proctor, you were talking~ about Mr. Bedeau? :: All I saw sir, was CO2 Pedeau. What did he do? A. He struck the inmate sir, with his right hand, on the left side of the inmate's face. 'IHE ARBITRAmR: Ncne of theseblows connected with you?.... I - 104 - THE WITNESS: Not that I can say, sir..... Mr. Bedeau struck the inmate sir, with his right hand, on the right side of the face. Inmediately following that, there was fist from the left. I‘ looked up, and I looked straight into Co2 Fitswilliam . . . . . Fight hard to the inmate's left side of the inmate's face. It was bang. 'Ihey were facing opposite directions. Stalteri was facing me way. Bedeau is facing the other. Bsdeau used his right hand and struck Stalteri on the left side of the face. I looked right up, arrl I looked right into Ekdeau's face. Immediately following CO2~Bedeau's "hit," as I will call it, there was a fist came from the left of the inmate. It was a right hand. I looked right up into CO Fitzwilliam's face. (You can smile all you want Fitz)..... Inmediately following that, there was... Bedeau hit the inmate again. Davidson said Bedeau was the fifth griever to strike Stalteri, immediately before three kicks by Fitzwilliams, p. 1261. (Unlike Proctor, Davidson named all six grievers as assail- ants). At p. 1309, Davidson said Bedeau came running towards the inmate and hit him in the face --- "a couple of blows." At p.1310 he, estimated that all this happened within a distance of about five feet. 1.. For reasons which must be obvious by now, the Board does not give great weight to the testimony of Stalteri, Proctor and Davidson. In a different category is the evidence of Warren Joslin on June 7. - . . Joslin is a chaplain with the Anglican Church Army who rendered certain services at the M.T.E.D.C. in 1981 and 1982, - 105 - 1 but not since. At about 1.30 p.m. on December 7 he was at the 5CE grille, interviewing inmates, giving or taking messages, pp.671-672. He saw two officers go to 5CW (Tennant and Tucker) and then the alarm was sounded. Officers responded quickly, some walking, some running. He said he saw "some of them go in," p.675, and continued at pp.676-678. Q. At this point. Did you observe them bring the inmate cut of the door? A. Not particularly, the door, no I did not. I noticed him after he was in the hall. I can't say that I saw them, you know, directly coming cut of the door, but I saw them soon after in the hall. The inmate that they had, seemed to be leaning over, and it looked as if his hands were behind his back. Although I could not say for sure about that. Wit it looked as if they were... obviously, he did not have his hands to protect him. He was getting roughed up. Q. What do you mean by that? A. Well, there were blows being given to him. I don't know just where. I was not that observant. I was looking more at the inmate. So I could see that he was being... things ware... you know, tie was getting... the best thing, is "roughed up," hrt I don't know, other than that... you can explain that. He ,was being hit. Q.. Did you see the blows landing on the inmate? A. I think yes, I did see some of the blows. I did not see them all. But I saw soms. Q. Okay. Then what did you observe? H>w many officers were there at this time, around the inmate, about? A. Well, I would say, there was... roughtly I guess, I would have to say there was about, six, seven, something like that. 'D-at is just a rough guess. Q. Okay? A. As he “as... as they were proceeding towards the... me and _ proceeding towards the officers office, a&d these things were happening, the inmate was groaning ard moaning and yelling. Q. Do you know what he was saying? A. Pardon? Q. Do you know what he was saying when he was yelling? A. No, I don't recall what he was saying. Then I might say, - 106 - that while this was going on, you see, I did not... I was rot looking all the time at what was going on, because I was talking to scme of the inmates, who were also watching. Q. Wherewereyou talking to these inmates? A. Well, I still had not moved out of here I was in tt-e unit, facing the unit where I showed you. That is right. Q. In this area hare? A. I was standing outside the door..... I think at a particular pint, when they got to about . . . in front of the officer's door, the room, they stopped. I noticed blood coming obviously from the fellow's face. There was blood dripping from somewhere, obviously in the front of.him, from his face. Then, at a partic- ular time, the inmate started ti sort of gasp, as if he was gasping. He may have done this, about once or twice, as if he was trying to catch his breath, or whatever. They, they... ha was learning over, so that then they put him onto the floor. WI-en he want to the floor, he was,cn his stoma&. Joslin said he recognized one of the officers and could not recall the name but had mentioned it in his "report" --- meaning the statement obtained from him in December by McMaster, Exhibif 19. In it the name he gave was Bedeau, but his statement and his testimony is that he did not see a blow struck by Bedeau. He knew the man because they had discussed the%Bible and related matters on previous occasions, p.682. Shortly after Stalteri's fall, Joslin was asked to leave the scene, and he complied. . . . Ln his statement on December 12, Joslin had been slightly more specific than in his testimony six months later. He said: - 107 - Tne unit was opened and some officers wentthenttey came out holding up one of tte inmates. He was stooped over forward, I think his hands here behind his back they were slowly moving up the hall and I was looking at tbs inmate, punches here being thrown at the inmate and I saw a leg come up attempting to kick him, they-had the inmate by the hair. The inmate was yelling,'1 saw blood dripping on the floor from somewhere presumably from the area of his face. At a point about midway in the hall near the unit office, they dropped tha inmate to the floor, he sagged from the officers grasp and there was no sound from the inmate and I thought he was unconscious. Ihen the inmate started gasping and Mr. Loughead (Assistant Superintendent) came into the unit ard bent down and looked at him and rolled him over on his side. Ihen I was asked by an officer to leave until this was cleared up, so I left. Q. Do you know the officers bringing the inmate down the hall? A. I cannot identify any except a black fellow, I think his ~ name,is BBDEAU. Q. Did you see BEDEAU strike the inmate? A. I can't say that I did, I'm not sure. To a very limited extent, the Joslin testimony confirms some of what was said about Bedeau by Stalteri, Proctor, Davidson and Gaston. Hugh M. Ross, a probationary officer in training, saw a "punch" thrown in the corridor, but he could not identify Bedeau. He could not even say whether the assailant was black or white. Some of his testimony may be-quoted, pp.829-830: A. As we ran down, we ran down this side of the corridor (indicating). !tbsre was a group of officers and an inmate proceeding down the hallway. -,. - 108 - Q. Which way, towards ycu? A. Towards me, yes, out onto the B landing which is back cut here -(indicating). 'Ihe.inmate was bent over. Q. Hew many officers were with him? Can you recall? A. I muld say four (4) ar five (51. I continued to jog down with the other officers ard as I passed this group I glanced over. I saw a punch being thrown hit I didn't see... or paid such attendtion to who threw it or even if it landed. 'Iha reason for that was because there was still a lot of commotion and yelling in the west side, so I though that this inmate was under control with these other officers so I directed my attenticn to go down into the unit. As I passed the group of officers, I noticed some blood cm the wall, cdl the south wall, and some drops of blood on the floor. Glenn Semple was 'in charge of recreational activities at the institution. He responded to the code on December 7 and was at the 5CW door for some-time. He was examined and cross-examined at considerable length, but the substance of his testimony about Bedeau is in part of the Occurrence Report he made to Superintendent Dunbar on December 23 --- more than two weeks after the incident. The following words appear at pp.l-3 of his report and are to the same effect as his testimony on June 7 and 8: .- There were approximately 10 Officers in the stairwell in the process of running up tha stairs to the fifth floor and we al.1 waited momentarily at the 5B stairwell door before it was 0p-d. When it was opened we all rantowards 5C. I was on the tail end and could see from the 5B landing that the CODE was in the5CWsst side. 'Ihe Officers cued in quickly into the Unit. I believe that this group of Officers was tha secondary response to the code. I had a glimpse of Warren Joselin as I came into the 5C hallway Irut did not see him afterwards. Just as I was approaching the 5C West Grill I observed several Officers barging out of the unit with an inmate under considerable - 109 - restraint. Q-e tall Gfficer had the inmate in a headlock under his left arm. I believe.there were more than 4 but less than 6 Officers 1*670 had hold of either an arm or hand or shoulder of the inmate and were moving him along..... in an upright position. (I did rot consciously make note of ylt70 these Officers were). m-inmate was shouting in a loud voice, somewhat in shock and fear. His face was mt visible to me at this time. ?he Officers appeared forceful but not violent in their actions. At this time I was standing directly at the 5C West Grill Door v.hich was open and being maintained by Officer Dorianne Pennant, looking into the unit ard the situation evolving inside. I &served Lt. Simpson at the opposite wall in the llnit facing us. He was attemptiq to calm the inmates down. I presumed that the inmate was being taken down the hall to the elevator and then to segregation. At the point where the Officers es- corting the inmate were by the Inactive Room Do3r I observed an officer, tie I believe joined the group and appeared to deliver several "rabbit punches" in the area of the inmates head. I identify this Officer as Officer Vie Eedeau. I remember that I ,, was a bit shocked by this unnecessary action. I turned my attention back to the Unit because I heard several inmates pro- testing loudly. 1~s however, aware that the officers escorting the inmate had continued walking past the Inactive area but not yet at the 5C F&t Unit. ‘Ihs inmate had stopped shouting. I registered that as ths group of escorting Officers moved down the hall then there were officers 'retreating' back to the 5CW tit and entering tbs Unit I saw the inmate slump to the floor in apparent unconscious state. He lay face down, just a few feet wast of the 5C East Grill. I don't recall any Officers being near him at this point. Semple also said that he and an officer (undoubtedly Gaston) later took Stalteri downstairs in a wheel chair. In his testimony the griever Gaston described the progress of the "escorting" party along the corridor. The following passage at p.1648 has already been quoted: - 110 - Q. Why did you become conscious of the presence of other officers....? A.. . . . . . It was a flurry of arms, grabbing for the inmate..,... black, white, olive-skinned, you know, white, black, Italian. Immediately upon looking up, the first parson I observed in a group still responding, of about eight officers, was Mr. Pedeau. Q. Did you have a grip cn the inmate at this time? A. Yes, sir. I still had him in a headlack. What this means is that Stalteri was being assaulted in the hall while Proctor was holding his arms and Gaston had him in a headlock, which (on their own evidence) makes both Proctor and Gaston accessories to acts of extreme cruelty,being inflicted by Bedeau and others. There can-be no excuse for Bedeau joining the party when Stalteri was in the corridor and was not only under restraint by several officers --- he was helpless. Semple's testimony that Bedeau actually struck the inmate has not been contradicted by any other witness and there is no reason to disbelieve him. Counsel has argued cogently that no inference should be drawn from Bedeau's failure to.testify. The Board accepts that doctrine. At the same time the Board is competent to accept the uncontradicted evidence of a..credible witness. .,_ - 111 - The necessary conclusion is that Bedeau's dismissal was for just cause. 'VI EVIDENCE RELATING TO MIKE FITZWILLIAM The griever Fitzwilliam was not one of the four grievers visually identified by Stalteri at the hearing of May 20. Stalteri said he had been kicked, but seemed to think the assailant was Gaston and eventually admitted he was relying on what he had been told rather than what he remembered. It seems probable that when the final kicks were delivered, he had already been so severely injured that he had no idea where the kicks came from. Tennant recalled clearly that Tucker and Proctor were' the first officers to enter the day room and said --- with less certainty --- that Davidson and Fitzwilliam were in the next group, the second group, p.558. Davidson himself claims to have been among the first to go to Proctor's aid; Fitzwilliam did not testify. Proctor specified Bedeau and Fitzwilliam as the fourth and fifth of the grievers to assault Stalteri, p.350, 112 - although he had earlier seen the unit, p.346. Fitzwilliam while "moving out of Davidson identified Bedeau as the fifth grievor to strike Stalteri and Fitzwilliam as the sixth and last with punches and three kicks. As Proctor did not mention D'Andrea, this means that on this point at least .Proctor and Davidson are in agreement: Bedeau and Fitzwilliam were the last of the grievers to assault the inmate --- just before his collapse. Notwithstanding the Board's doubts about some of their testimony, there are grounds for concluding that Fitzwilliam did in fact kick Stalteri as alleged by Davidson. In the first pla.ce, there were fractures of bone behind the eye as well as bones in the nose and sinus area, and. nurse Brandham described "quite a gash, or chunk, out of his bottom left side of his lip." All this damage is more consistent ... with kicks than with "punches." It would require much force to inflict the injuries suffered by the inmate in a few seconds. The "rabbit punches" thrown by Bedeau would not be sufficient. In his statement of December 12, previously quoted, the witness Joslin said: - 113 - . . . punches were being thrown at the inmate and I saw a leg come up attempting to kick him..... Nurse Brandham was the first person to examine Stalteri professionally. Among her observations was the following, p.1115: I noticed, on his forehead, tiich I thought at first glance wsre bruises, hrt then it looked like magic marker, a shoe polish, or tiatever, on his forehead. It wasn't a bruise. The photographs taken of Stalteri in the hospital ,. the next day reveal many bruises and confirm Brandham's .,observations. The Board is satisfied that Stalteri was kicked in the face at least once and probably more than once. The identification of the officer who kicked Stalteri was made only by Proctor and Davidson. Notwithstanding strong doubts about some of their testimony, it is necessary to consider the plausibility of what they said about Fitzwilliam and the kicks. ', After stating that he saw Fitzwilliam when coming out of the day room, p.346, Proctor made further reference to him 0 r - 114 - at ~~347, and then --- describing progress along the corridor --- he said at pp.350-353: Inmediately following CO2 Bedeau's "hit," as I will call it, there was a fist came from the left of the inmate. It was a right hand. I looked right up into CO Fitzwilliam's face. (Ycu can smile all you want Fitz.) :. . . . Imnediately.following that, there was . . . Bedeau hit the inmate again..... After Bedeau was Fitswilliams..... Right after Fitzwilliams, because I looked right up, and I looked right into his face. Rere was another black fist from the front. Than there was a kick from the left. CC2 Fitzwilliam, and the inmate just hung. 'IBE ARBITRATOR: Just a minute, now. tild you explain what you mean by a "kick"? 'B-93 WITNESS: A kick to the face. I don't know any other way to describe it, other than saying, the foot was raised off the floor, and struck the inmate in the face. MR. BENEDICT: Can you demonstrate for us? THE w1TNEss: Sure. I have got Stalteri in my arms. I am still twlding cn to him. Bedeau was straight in front, a little bit off to the left. It was a right fist struck the inmate in the face. Right after that, CO2 Fitzwilliam struck the inmate with a right hand. I looked up right into Fitzwilliam's face. I looked right into Bedeau's face. I looked right into Fitzwilliam's face. Right after that, there was another fist from the front. I am . . here, .like this. I have got the inmate a little bit offto my left. I looked right up into Bedeau. I looked right over here, into Fitzwilliam's. Bedeau was standing right here. Fitzwilliam's is standing right there. 'Ihere was another fist from the front. I am... I looked. It was bang, up, bang, then it was bang, another black fist again. Fitzwilliam's is right there. 'Pne body is right there. %x-e was a foot. It just came up. It just went boom, and kicked him right in the face. With that, the inmate just went limp. Q. All right. Ihen what happened? A. 'R-rare was anotbzr kick from the leff. 'IXE ARBI'IRATOR: A second kick? THE WITNESS: Yes, sir: Erom the psition, the same foot, the same bdy. THE ARBITRATOR: Ycu mean,'after Stalteri was down? THE WITNESS: He was not down. I had Stalteri by the arms. - 115 - 'II-E ARDI'IRA?DR: I thought you said he went "limp"? 'IHE WITNESS: He did sir. He went limp, bit I an . . ..his weight, he just... there was no resistance. It was bang, he is limp. 'Ihen there wasanother kick and he jsut fell to the floor. - Davidson's account of it was similar but more dramatic andmore particularized, with a certain effort to exculpate him- self, at pp.1253-1255: As of that point, officers who were with me, approaching the incident, were all over me. As I was in front of the inmate, the officers were trying to get at the inmate. So, a see- saw motion occurred, here I was trying to heave him out of the unit. Trouble of trying to get him out of the unit. Q.~ Okay? A. As we see-sawed through the door, into the hallway, an assault occurred. Q. Okay. What happened? A. CO Gaston kneed the inmate in the face. Mr. D'Ardrea hit the inmate in tte head. MIY. Gordon hit the inmate square in the face. Mr. Lcnsdale punched and kicked the inmate in the face. Mr. Bedeau struck the inmate square in the face. Mr. Fitswilliam round house kicked the inmate three times, right square in the face..... Q. Then what did you do? What were you doing, when all'this was going cn? A. Holdinq the inmate on the right side. CO Proctor still in the same position, in back of the inmate. CO Bradley on the left side. Q. Did you see any blood at this time? A. Yes. Q. Whereatits? A. I received blood cn my shirt, due to the excessive beating. Q. Did you see it anwere else? ;: At the time, I can't recall. '. ._ _~ Okay. What happened next? A. As the beating was going down, I was yelling them to stop the beating. As tbzre were several officers at that time, controlling the inmate, I wanted no part in the assault. I returned back to the unit, where the disturbance was going down. .., - 116 - Cross-examined, Davidson gave more details, at p.1311 and 1313: Q. So Fitzwilliam was behind you, ard &at did he do? ; : He kicked the inmate three times in the face. Okay. Nm where . . . how did he do that one, if he was behindycu? A. With his left leg, coming around the left side, hit the inmate in tba face..... Q. Ard you said... tiat did the inmate do at this point, after those three kicks to the face? What did the inmate do? A. The inmate fell limp... Q.: Right? ;: . . . due to the hit. Ard did he fallout of the arms of Mr. Proctor? A. As I can recall, no. There were other officers --- and also supervisors --- in the immediate vicinity. Unfortunately their attention seems to have been directed exclusively to the disturbance within the day room. Parts of their testimony are unbelievable, but the Board finds that Proctor and Davidson told the truth in identifying themselves as members of the, party "escorting" Stalteri. This they did because there had to be an explanation for the serious injuries suffered by Stalteri and because it enabled Proctor and Davidson to attribute all blows and kicks to the grievers, imagining that this would absolve themselves 6, I - 117 - of guilt. What Proctor and Davidson overlooked is that by holding the inmate in the hall (as they say they did) they became voluntary accessories to a series of criminal acts. Proctor and Davidson say the kicks came from Fitz- William. It is a credible explanation and there is not an iota of evidence to the contrary. The Board's conclusion is that the griever Fitzwilliam did in fact use excessive force against Stalteri and that his misconduct constituted just cause for dismissal. THE SECOND CHARGE The second charge stated against all the grievors in their dismissal letter (and quoted at the outset of this decision) was as follows: .._ Failed to comply with Section 7(2) of regulation 243/7¶ under M.C.S. Act in that you failed to submit a full and factual report consistant (sic) with the requirements of that regulation. Section 7 of the Regulation cited is as follows-‘ 7(l) No employee shall use force against an inmate unless force is required in order to, - 118 - (a) enforce discipline and maintain order within the institution: (b) defend the employee or another employee or inmate from assault: (c) control a rebellious cc disturbed inmate; or (d) cmduct a search, kut where force is used against an inmate, the amount of force used shall be reasonable an3 not excessive having regard to the nature of the threat posed by the inmate and all otter circumstances 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 tha threat posed by the inmate and all other circumstances of the case. In evidence are "Occurrence Reports" by all the grievers, some of which were made only after they had been requested by Lieutenant Simpson. It was very well-known not later than 2 p.m. on December 7 that an inmate had been seriously injured. Even if they denied active participation in the use of force., reports by all those involved surely ought to have described fully what z was known about an incident of such importance. All but one failed completely to do so. . (1) Robert Gordon Gordon's report, Exhibit 28 (dated 7/12/82) mentioned one inmate "being escorted out through the grill" but did not mention the use of force or any injury. It is very brief. - 1.19 - (2) Jo D'Andrea The officer's report, Exhibit 31 (dated "Dee 8-62 13:OO") in four and one-half lines of typescript, mentions no inmate, no force and no injury. (3) Stephen Lonsdale The Lonsdale report, Exhibit 33 (dated "Dec.8/82 1100") states that "upon arriving I attempted to help remove an inmate (Stalteri, Giuseppe #04755) from 5C Day Area," but there is no reference to any force or any injury. St is inadequate. (4) Thomas Gaston This officer's report, Exhibit 32 (dated "8112882 ~1225 hrs") on 26 lines of typescript, is the only one approaching compliance. Gaston stated that: UpOn arriving at 5CW I observed c/o Proctor attempting to restrain an i/m with what appeared to be a double arm bar from the rear tba i/m was struggling. I immediately re- placed the inmate in a headlock and started pulling him from the unit upon getting clear of the unit into the hall- way. I MS aware that their was still,a serious problem in the unit so knowing the i/m was secure, I returned to the unit to furtt-er assist..... After securing the i/ms in the unit I ret'd to the hallway and found that the i/m had suffered injuries and Mr. Lackhead.was bcnding beside him. lhe nurse had been summoned. After her inspsction- she requested a wheel chair. Mr. Cockhead requested my help in this matter and we then both went to the medical unit to get a wheel chair. I obtained the wheelchair and returned to the fifth floor with the wheel chair. Getting the i/m on the wheelchair I wheeled him to the medical unit, and finding myself no longer needed ret'd to my unit. - 120 - (51 Victor Bedeau The Bedeau report, Exhibit 30 (dated "Dec.O8/82 1230 hrs.") in only eight lines states "I saw an inmate being escorted by a number of officers," but little else. It is not believable. (6) M. Fitzwilliam This report, Exhibit 29 (dated "Dec.7 1430") in little more than four lines, merely states that "when I arrived... an inmate was being brought out of the unit. I stayed inside the unit because the inmates in 5CW were refusing at first to go into their cells." It isalso not believable. It may be noted that four of the six reports were not written until December 8, and then only because they were requested. TWO excuses are given for t,he brevity of the reports. One .' is that officers have been taught to make Occurrence Reports as concise as possible. The second is that Lieutenant Simpson had asked for only a few lines or "a couple of lines." Neither _ tale justifies the suppression of material facts after an inmate has been injured and hospitalized, even if evidence is insufficient to show the use of excessive force by Cordon, D'Andrea and Lonsdale. It was plainly stupid to imagine that the incident could be hushed up in this way; or that the par- tic ipants would not be identified. - 121 - - All officers are well aware of what is clearly stated in both subsections of Section 7, Regulation 243. It is part of their training, for which they have given signed acknowledgi merits. Exhibits 76, 77, 72, 71, 69 and JO. Three of the grievors clearly fall within the language of Section 7(2): Gaston, Bedeau and Fitzwilliam. Their failure to comply constitutes a second reason for upholding dismissal. As for the other three grievors, Gordon, D'Andrea and Lonsdale, they deny anyf,orce, or excessive force. It ,: has not been proved otherwise. Thus, technically speaking, they do not fall within the language of Section J(2). 'The Board is of the opinion, however, that on being asked to report they ought to have done so fully and truthfully, stating what they knew. THE THIRD CHARGE The third and more serious charge against the grievors (quoted at the outset) was the following: - 122 - Failed to comply with Sec. 22 of the M.C.S. act in that you withheld, mncealed and/or refused to furnish information required by an inspector for the purpose of investigating the alleged use of force by staff on inmate Stalteri, G. Section 22 of the Ministry of Correctional Services Act is as follows: 'Iba Minister may designate any wrson~ as an inspector to make such inspacticn or investigation as the Minister may require in connec- tion with the administration of this Act, and the Minister may and has just cause to dismiss any employee of the Ministry tie obstructs an inspectim or investigation or withholds, destroys, conceals or refuses to furnish any informationor thing requiredby an inspector for. the purposes of the inspection or investigation. In this chase the Ministry's Inspector was Clair McMaster, who obtained sworn statements from all the grievors, Exhibits 15, 14, 16, 17, 11 and 13. The Board has decided, in considering the first charge, that the dismissals of Gaston Bedeau and Fitzwilliam were for just cause by reason of their use of excessive force against Stalteri, which they concealed from McMaster. It is therefore necessary, in. connection with the third charge to consider only the evidence relating to Gordon, D' Andrea and Lonsdale. In the Board's view, their sworn state- ments to McMaster constituted witholding and concealment within - 123 - the meaning of Section 22 in the Act. (1) Robert Gordon - Most of Gordon's statements in Exhibit 15 were consistent with his testimony and other evidence. He states that "when I got to the unit door one inmate which I later learned was Stalteri was being escorted out of the unit." This is probably true, but Gordon later stated that "I can't say for sure" who was escorting the inmate." The Board finds this an evasive answer whichis:difficult to believe. Gordon also said he did not observe any officer strike Stalteri, and we find this even more difficult to believe in view of other evidence that Stalteri was assaulted before and after being brought out the door --- when Gordon was at or near that door. The Board concludes that Gordon did not tell the inspector all he knew, which constituted concealment within the meaning of Section 22. . . . (2) Joseph D'Andrea In his sworn statement, Exhibit 14, D'Andrea said that he responded to the Code from the first floor and that when he arrived at 5C he ran into the unit where Simpson and Parish were talking to the inmates. This suggests that he did not arrive until after Simpson had entered. It also means that he met a group of officers, moving in the opposite - 124 - direction, obviously bringing someone out of the unit. This is what he omitted in his sworn statement although he has since testified about it. The evidence of other witnesses fails to show that D'Andrea was among those who struck Stalteri. It is apparent, however, that he did not tell McMaster all he knew, which constitutes witholding and concealment. (3) Stephen Lonsdale In his sworn statement, Exhibit 16, LonSdale,said "When I got there they were coming through the grill door wi th an inmate I didn't know..." He also said "I never got a c&ear look at the inmate," which is believable since Stalteri's head was down low and he was in the clutches of several officers. However, he also said he did not know who the escorts were. This is incredible. Lonsdale had been in the institution for five years and must have recognized at least one of the officers, particularly the "red-head" Davidson, who had been there since 1979 and is highly recognizable. It seems clear that tonsdale, like others, was not telling McMaster all he knew. This failure was concealment within the meaning of, Section 22. The concealments described were flagrant violations of Section 22 in the Act and merit severe discipline. Although .,. - 125 - the Board has decided that the first charge against Gordon, D'Andrea and Lonsdale has not been proved, and they must be reinstated, nevertheless the appropriate penalty for concealment would be suspensions without pay from December 8, 1982, to December 31, 1983. It has been suggested in another case that when the power to dismiss is exercised under Section 22 of the Ministry of Correctional Services Act, this Board has no jurisdiction to exercise its authority under Section 19 of the Crown Employees Collective Bargaining Act. That theory was rejected in Dvorak et al 113/81 and it will not be further discussed in this decision. One further comment can be made on the matter of dis- closure: if the grievors --- and also officers and supervisors _L --- had been more forthcoming and less reticent in their reports, their statements and their testimony, it would have taken much less time for counsel to adduce evidence, and much less time to study and consider the result. This is a case in which the code of silence proved to be more costly than full disclosure would - have been. - 126 - THE FOURTH CHARGE The fourth charge stated by Superintendent Dunbar in the dismissal letter was: Y~I violated your position of trust as a correctional officer .by your actions related to this incident. This was merely a composite "wrap-up" charge closely related to and dependent upon other charges, particularly the first and the third. Thus the result turns on results in the others. The three grievors found to have participated in the use of excessive force certainly violated their position of trust. The Board finds against all six on the third and fourth charges, findings of grave misconduct on their part. When problems arise in a penal institution, it is essential in the public interest that the truth be made known and not concealed --- certainly not by peace officers. Gordon, D'Andrea and Lonsdale grieved against suspensions. The Board holds their suspensions to be justified by reason of findings against them under the third and fourth charges. Their suspensions must continue to December 31, 1983. - 127 - PROBLEMS OF CREDIBILITY Throughout the protracted hearings in this case and subsequent study of t,he voluminous evidence, the Board has been troubled by problems of credibility as well as admis- sibility in three areas which may be summarized as follows: (1) The Inmates Apart from Stalteri, no testimony was given by inmates. This is not said in criticism: it simply illustrates the difficulty of getting at the truth in a case involving officers and inmates in a penal institution. Nevertheless, inmates had a very active role in the incident itself. Exhibit 64, the inmate petition given to' Simpson (at his request) shortly after 2 p.m. on December 7, was admitted into evidence, although the Board has reservations about that doc- I,. ument. Simpson's explanation was clear, but the "petition" would have more weight if the author, one Lockhead, had been called to testify. The only officer clearly identified in Exhibit 64 was Davidson. This soon became important. When Davidson heard about it he consulted with Proctor and then had an early morning interview with Superintendent Dunbar in which he alleged that six employees (i.e. the grievers) were plotting ,,. - 128 - to "set him up." His subsequent request for a transfer was approved and he moved to a post at Brampton. Thus he appeared as a star witness at the hearing held on June 13. The name of an inmate in 5CE named Smith was mentioned, but his story is not in evidence. Apparently this man was a willing worker and was often used by Tucker and Tennant for "cleaning up." Tennant testified he gave her some information on December 7 after "everybody had cleared out." Smith was not a resident in 5CW: his home was in 5CE, and he sometimes cleaned the floors outside it. Ms. Tennant, while being cross- examined, pp.575-576, testified as follows: ;.s hl; kng.nammi.th... I know him. I can see him. Smith . I am not quite sure of his first name. Q. Well, I understand that he advised you as to who the two main culprits in this incident were? A. He said that he saw the thing, from the grille door, yes. Q. Who did he identify? A. He said that there was the red headed guy, and a tall blonde guy with a moustache. Q. Could you identify who these two individuals are? A. Well, I would presume it muld have baen...theonly red headed guy that I remember up there, was Mr. Davidson. Q. What a?xut the tall blonde guy with the moustache? A. Ihe tall blonde guy with the moustache... the only tall... he said he was tall and balding. That to me, muld have been Mr. Proctor. I don't recall seeing anybody else that was... with that description. Q. Okay. So that inmate Smith identified Proctor and David- son, as being the two... as being what? ltra two key guys who ware assaulting, or what? A. He said that they were... you know, out there with Stalteri. He says, "I know who it was. I know who it was." .,. - 129 - Q. Who it was, who what? A. He did not, you know, specify on what it was. He just said, "I saw the whole thing. I saw it. It was him and it was him." Q. Ckay. ti, did you advise inmate Smith to tell anybody this, or-did he tell anybody this, do you know? A. Well, as far as I presumed, I had told people that I had talked to inmate Smith. I presume that they... the people in charge, muld contact Mr. Smith, yes. She also said that her partner, Tucker was "in the area" at the time. Tucker in his testimony disclaimed knowledge of exactly what was said. Of course the Smith story is an extreme form of hear- say. Unfortunately he was not called as a witness. There is also on the file an illegible copy of a letter by one Tutty, dated December 21, 1982, which was apparently sent to the Attorney-General and eventually reached Superintendent Dunbar, as he admits, p.515. The copy is not c.. legible and is not evidence but it is alleged that the letter states "the main perpetrator is still employed by the Ministry." Counsel undertook to call Tutty but apparently was unable to find him. There is other evidence that Davidson was regarded by inmates as the prime offender. - 130 - CO2 Raymond Bottaro testified about an incident in December. He said, at pp.1738-1740: Q. Just to return to Mr. Davidson for a moment, after tha incident, did you ever have any discussions with Mr. David- son;regarding the December 7th code? A. Either a day later, or two days later... I am not sure which... Davidson and I were assigned to do gymnasiums... escort inmates to the gymnasium, and I believe the unit we were escorting was 5A. We went down to draw radios, Davidson said to me, To you mind if I lock myself in the gym office while the gym is going cn?" I said "Well, tiy? Yell don't smoke?" I said, "I smoke." Tha only place ycu can smoke in there is in the office. Be said "Well, yes, but the word is out. the inmates.are going to get me." And I said "What are you talking about? 'Ihe code in SC the'other day?" He said "Yes. The word is out. They are going to get me." ~ I said "Christ! If it's that important to you, go ahead." So we want upstairs, ard I called the inmates mt for gym- nasium, ard Davidson waited by the 5A/B door, while I was getting the inmates into the corridor to bring them through. When I got the inmates cut of tha unit, Davidson moved to the 5B stairwell door, and stood there while I was moving the inmates thrcugh that door arrl down the stairwell. Be then followed us down the stairwell, and cut... and I moved the inmates into the east yard, peparing to enter the E3 door to go into the gym. Davidson remained at.the El door, away from the inmates, until I got them into the gymnasium. He , then followed us into the gymnasium, and went into the gym office, and locked himself in there. He remained there until the gym was complete. Ihen I moved the inmates out of tte gymnasium into the east yard, and Davidson came out of the gym office and waited at the E3 door until I went through the El door with the inmates, and back up the stairs again. Be remained behind us all the way up to the 5th floor again. Be was obviously concerned about his remarks to me. .,. ( - 131 - 2) The Innocent Witnesses In view of what occurred within the 5CW day room, at the door and in-the corridor within sight of several officers and supervisors, the Board has concerns about their testimony. It is difficult to believe that they did not see more than they admit. The excuse offered is that their attention was riveted on an inmate disturbance. There was indeed a disturbance, and the evidence is that it began when Stalteri was first assaulted --- within a few feet of the door. To see.the distrubance without noticing its origin or focal point'was remarkable --- and no,t believable; As for the assaults in the hall-, it is equally difficult to understand how it could be invisible to officers and supervisors in the immediate vicinity. Defective eyesight cannot be the explanation. A11 those present at the time should search their consciences. (3)‘ The Principal Witnesses It is unfortunate that the employer had to rely heavily _ on the evidence of Stalteri, Proctor and Davidson. Stalteri's considerable criminal record does not necessarily mean that he is a perjurer. Disregarding entirely his deplorable record, Stalteri was not a convincing witness. His testimony , , - 132 - contradicts his sworn statement to McMaster. He has claimed that he and Baxter were just "fooling around" or wrestling on the floor: indeed, he tried to give the impression that it was merely friendly horseplay. On that point his testimony was false, reducing the probative value of his other statements to a very low level. -.. Kevin Wilson is a Rehabilitation Officer 2 at the Toronto Jail and also Chairman of the Corrections Division of O.P.S.E.U. Testifying on June 17 (four weeks after Stalteri) he said that Stalteri had sought an interview with him in .March or April, and continued at p.1721-1723: A. Well, after Jack asked me if I muld talk to him, I agreed, and he said to me that he wanted me to arrange to have his crim- inalchargesdropped against him, and if I muld do that, he muld drop the charges against the officers at the other institution. I don't believe at that time he mentioned the East, and I didn't even know who he was, at that point, so I asked him what ha was T.. talking abut. he identified himself, and then repeated his statement..... I told him that I could in no way involve myself in mmething like that, nor would I want to, because there was an ongoing investigation by ths police about this, and it could bz viewed as obstruction, ard I didn't want to have anything to do with it..... Well, after I told him that I could do nothing, and didn't want to have anything to do with that, he made several comments &out tiat had happened at the Toronto East Detention Centre. Specifically, he said words to the effect that he didn't really know why they were going after the officers, at tke East Detention Centre, &cause thay hadn't really done anything, and the person who had injured him, L&O had kicked him in the head, was an officer by the name of Davidson..... - l-3 - He didn't come out and say "I am going to have people beat Davidson up." He came out and said, "Well, I am going to have somebody take care of Davidson cn the street." An3 he also made a mmment about his concern that the Ministry wasn't going after this officer. Ihay weren't doing anything to him. Wilson said he was again approached at the Toronto Jail in May, but refused to entertain Stalteri's suggestion, of which he did not inform the grievers' counsel until June 1. The suggestion 'was of course totally inconsistent with Stalteri's testimony on May 20. That testimony was mostly false. Proctor is physically (butnot otherwise) a very strong young man who had completed his probationary year on November 8. He is a university graduate, lived alone and had no telephone, but was accessible at his parents' home which is close to his. It is clear that Proctor agonized about his experience ~ on, December 7. As he said, it made him "sick." It was custo- mary for him to get a ride after work with Davidson. On the night of December 7, Davidson stayed with him for several hours at the home of Proctor's parents. Proctor said: "I proceeded to tell Mr. Davidson everything I knew-.... I had to talk to somebody. I was a mess," p.367.' - 134 - Proctor continued that when he spoke of hearing a voice "Are you all right?" Davidson kept saying "That was me, That was me... That was me," p.369. There fol lowed an interesting statement, also at p.369: I don't know if it was this day or the next day, I remember Mr. Davidson saying, "He has to discredit Tennant. He has got to discredit Pennant. F3a has got to make it so nobody will ever believe her." This quotation was repeated later in Proctor's test- imony. If true, it suggests that Davidson was in fear of what Tennant might say. The following question and answer appear at p.370 of the transcript: ME ARBI!IRAlOR: Did I understand you say, that you mentioned the names to him, tiich you have told us about today? 'IHE WITNESS: Sir, I mentioned to Mr. Davidson, CO Lcnsdale, e Gordon, 03 Gaston, CC Bedeau, CO Fitzwilliams, and Co D'Wrea. . . In the statement above Proctor mentioned D-Andrea. Cross-examined later the same day, Proctor said D'Andrea's part in the incident was "None whatsoever," p.382. - 135 - Proctor had written an Occurrence Report, Exhibit 24, at 2.20 p.m. on December 7. He said Tucker and himself had broken up the fight, and "I had inmate. . . by the arms from be- hind." This was true, but the last three sentences told much less than the truth: "I was about at the grill door when responding officers arrived. Inmate Stalteri was moved into the hallway and was restrained by responding officers. Knowing the seriousness of the situation inside 5AW (sic) I left Stalteri and returned to 5AW (sic)". Proctor appears to have confused his own unit, 5A with 5C, where the trouble was. It is perhaps a symptom of his dis- tress at the time. That night he had his long conversation with Davidson. The next day, December 8, Proctor gave his first sworn statement, Exhibit 9, part 1, to McMaster at 3.50 p.m. . ..~ He has admitted it was false. For example, on being asked "What other officers were present?" he replied "I don't know." Proctor had another meeting.with Davidson that night and decided to change his story. Between 9 a.m. and 10.55 a.m. (almost two hours) on December 10 he volunteered a second sworn - 136 - statement to McMaster, Exhibit 9, part 2. Thi identified Lonsdale, Gaston, Gordon, Davidson, s time he Bedeau and Fitzwilliam as participating, but he tried to clear Davidson with these words. "I think someone was yelling for them to stop. 'You're going to kill him,! or words to that effect. I learned later it was CO Davidson." He said inmates were pointing at D'Andrea in the day room but "I cannot say I saw D'Andrea strike the inmate," a neat touch of verisimilitude. He also said he had been "pressured" by "Unionreps" and by Gaston to "stand solid." The real explanation for Proctor's change of front wasrelated by him in testimony at pp.373-374: Q. New, can ycu tell ths Board, Mr. Proctor, why you decided to give a second statement, or the circumstance surromding your second statement? A. 'D-et would start December the 9th, in with the police. I an with the police, and they basically let me know that I had been hung out to dry. MR. ROBINSON: What does that mean? THE WITNESS: 'Ihat means, that every officer that was in on this, refused to even admit they were there. Thatntsan.5 that I was told that I was left in the hallway with the inmate alone, which is garbage. That means, that I sat there, and I had to make a decision whether I was going to tell the truth or not, and I decided to tell the truth, as accurately, as I could. I told the police who struck the inmate. I came in the next day, December the lOth, at approximately 7.20 in ths morning, and I offered Mr. Dunbar my resignation, because I signed a false statement, December the 8th. - 137 - In subsequent questioning Proctor admitted he was afraid others would combine to pin the blame on him, but he denied that the police had promised'immunity if he told all. - The fact remained that all the grievers were charged with .a criminal offence: he and Davidson were not charged. There is other evidence casting doubt on Proctor's veracity, but two more examples will suffice. The witness Bottaro testified as to a conversation following appears.at pp.1737-1738: There had been a lot of talk going around about the oode... it was roughly a couple of weeks later... and I asked Eric exactly what had happened, because I knew he had been there. He told me that when the code went off, him and Davidson mre one of the first two officers to respond to it, and when he got into the unit, he grabbed a hold of inmate Stalteri, from behind... he is holding both... he had his arms hooked around Stalteri's arms, and threw him back into his chest. He told me Davidson came in after that, ar%d punched Stalteri. in the face, two or three times, and I said to Eric, at that time, "In the unit or in the hallway?" And he said "No, right in the unit. right in front of the inmates." And I said, "Christ, you could have had a riot!" And Proctor said "I know. I was swinging Stalteri back a&forth, sideways, to try and get Davidson to stay away from him." He told me that they moved him out of the unit, other people came, et cetera. cetera. Q. Q. If I might return to Mr. Davidson for just one moment, If I might return to Mr. Davidson for just one moment, did Mr.Proctor make a comment about Mr. Davidson, at the time did Mr.Proctor make a comment about Mr. Davidson, at the time that you had this discussion? that you had this discussion? - 138 - A. Yes. He said, at that time, when I said to him "Christ" ya oould have had a riot!" Ha said, "I know. Davidson's nuts." tie said, "I was trying to get Stalteri away from him." - The other example is a simple one. Proctor testified that Tennant told him: "Eric, you didn't have a chance....." Tennant denied it and said that she didn't even know his first name was "Eric." For,the foregoing reasons and other reasons the Board doubts Proctor's credibility. He told part of the truth --- but not the whole truth. This is what he did in his first sworn“ statement to McMaster on December 8 and he did it again when testifying under oath on May 31. Davidson did not enjoy a high reputation for truthful- ness at the M.T.E.D.C. There is testimony to that effect by Tennant, Bottaro, Simpson, and even Proctor, among others. Setting aside that evidence, the Board finds that although Davidson undoubtedly told part of 'the truth there are unbelievable and even preposterous elements in his account of the incident and its aftermath. As requested, Davidson wrote an Occurrence Report, . . . . - 139 - Exhibit 25, at 2p.m. on December 1. It revealed very little, but contains the statement that "I used minimum amount of force to subdue the inmate....." - Later that afternoon, December 7, Davidson learned that he had been identified by the inmates in Exhibit 64. He testified on June 13 he was warned by another officer he did not wish to name. On being pressed he said it was "Mr. Worrell." He said further that Worrell told him the "people who assaulted the in- mate" were "not with me," and "I was going to be the fall guy," p.1321. CO2 O.T. Worrell was called to testify at the hearing of July 12. He flatly denied talking to Davidson on December 7 or on any subsequent day. According to Proctor, he was on the afternoon of December 7 driven home by Davidson, who stayed until 10 or 10.30 p.m., listening while Proctor did most of the talking: "1 just described to Ray what had happened," p.410. He had read some reports of other officers such as Fitzwilliam and was alarmed by them. In the course of the conversation he named the six grievors --- all six of them. Apparently, it.was later he decided he had been wrong about D'Andrea. - 140 - Early in the morning of December 8, Davidson sought and obtained an interview with Superintendent Dunbar, whose testimony is as follows, pp.161-162: He approached me and indicated that they were going to blame it on him, and he wanted to make a statement. 'IHE AF'.BITRAIOR: Who is "they"? THE WITNESS: Well, he indicated and named six officers. Qt Did he tell you who the officers were? ;: Yes, ha did. who were they? A. Mr. Fitzwilliam, Mr. D'Ardrea, Mr. Gaston, Mr. Lonsdale, Mr. Eedeau, and I believe Mr. Gordon. Did I miss Mr. Gordon? FUt he gave me the six names, the six people who are in this room today. I told him at that time that I was not doing an investigation, that Mr. McMaster would be in to sea me at nine o'clock and he could h make the statement to Mr. McMaster. Mr. McMaster did come in to the office at nine o'clock; I informed him of Mr. Davidson's discussion with me; turned over all the reports I had, and turned the investigation over to Mr. McMaster. The six names were those Proctor had mentioned the previous evening. In the sworn statement he gave McMaster during an interview between 1.05 p.m. and 2.40 p.m., December 8, David- son named the same six, giving almost exactly the same details as in his testimony six months later. Davidson had not told Proctor what he was going to do on the morning of December 8. However, by December 10, after another talk with Davidson and an unhappy session with the police, Proctor made his second sworn statement, telling a story .h “i - 141 - similar to Davidson's, except that he omitted the name of D'Andrea as an assailant. It seems probable that both Davidson and Proctor were stricken by fear that they would be blamed for Stalteri's injuries. In Davidson's case this was particularly serious because he was known to have a zeal for "codes" and a propensity for violence. The witness Bottaro had worked with Davidson on previous occasions. He testified at pp.1735-1736: Davidson was constantly talking about his ability as a Karate expert, and at one point he told me he had his punch measured at 700 pounds of pressure per square inch. I don't know how you do that, but I suppose it's possible. He also indicated tienever there was trcuble in the jail, they would always call out ths heavies, and Davidson was the~,first guy to get called... Cn another occasion, we had a code... roughly tvo years ago... on an inmate named Aiden Day..... Now myself and an officer Beckta had this inmate under restraint... we were laying on him cn a hallway floor, when some people responded to the code. One of them was Davidson..... we were holding Day on the floor. I was laying across his chest, and some people come in and I got kicked in the face, ard it was Davidson that was kicking me. Then I askedhimto stop, as well. Q. Was Mr. Davidson trying to kick you, Mr. Eottaro? A. No. Naturally he was kicking at the inmate. Bottaro-also said Davidson claimed to have been with the Military Police in Germany "and when I asked him what city in Germany, he said Stockholm," p.1734. Bottaro testified "he is well known to be a compulsive liar and exaggerator," p.1733. - 142 - In testimony, Davidson made two very positive state- ments which can only be described as preposterous. Davidson said Stalteri was assaulted entirely outside the 5CW door, p.1254, and in a space of five feet, pp.1310 and 1313. He also said the party escorting Stalteri down the hall consisted of at least nine persons, perhaps 10: the\,six grievors, Bradley, Proctor and himself, p.1376. Apparently this was designed to show that three of them were merely .holding Stalteri while the other six were assaulting the inmate. On the whole, the Board is obliged to evaluate Davidson's credibility at a low level. From their own testimony, it is clear that both Proctor -., and Davidson were deeply implicated in the incident of December 7. They were not, however, grievors in this case; instead, they became the key witnesses for the employer, attempting to absolve themselves and identify the grievors as participants in the .- assaults on Stalteri. As such, their testimony requires support by strong circumstantial evidence or from a credible witness. - 143 - It is always an unpleasant duty to make findings against credibility. Unfortunately, this is a case in which such findings have been unavoidable. Without naming names, it is impossible to believe that several witnesses were telling the whole truth when they said they saw no blows struck or could not identify any of the officers escorting Stalteri, except perhaps Proctor. There must have been few cases coming before this Board featured by so much forgetfulness, or defective eyesight. As peace officers sworn to uphold the law, the staff at the M.T.E.D.C. are bound to tell the truth, whether or not they have any innate respect for the oath. It would be easy to demonstrate --- on the evidence heard by this Board --- that at least 18 supervisors and officers were within a few metres of Stalteri when he was grievously in- .I_ jured. That in itself fails to prove participation in the assault by any of them: evidence of "opportunity" is not enough. To prove participation there must be either an admission by the accused or convincing testimony from at least one credible witness, or at least strong circumstantial evidence. - 144 - Lacking sufficient help from certain witnesses, the Board has been obliged to reach conclusions on the balance of probabilities having regard to the credible testimony and the weight of circumstantial evidence as well as inferences drawn from Occurrence Reports and sworn statements given to the Ministry's inspector by the grievers and by others. The lengthy suspensions to be accepted by three grievers represent very severe penalties. The Board finds them necessary because it is important that the grievers and indeed all correctional officers recognize the gravity of,the offence of concealment. They are peace officers, agents in the administration of justice, sworn to uphold the law. Unless they wish to attract the attention of Amnesty International, they ought to abandon the code of silence. When brutality occurs the facts must be fully exposed and not concealed. It is so required by the Ministry of Correctional Services Act. - 145 - S,U M M A R Y For reasons heretofore stated. the Board's conclusions in respect of these 12 grievances and four charges may now be summarized as follow: l.(a) The first charge against Robert Gordon has not been proved, his grievance against dismissal must be upheld, the dismissal is set aside and he shall be reinstated as and from January 1, 1984. (b) The third and fourth charges against Robert Gordon have been proved, but having regard to all the circumstances dismissal was an excessive penalty and suspension until December 31, 1983, is hereby substituted. 2.(a) The first charge against Joseph D'Andrea has not . . . been proved, his grievance against dismissal must be up- held, the dismissal is set aside and he shall be reinstated as and from January 1, 1984. (b) The third and fourth charges against Joseph D'-Andrea have been proved, but having regard to all the circumstances dismissal was an excessive penalty and suspension until December 31, 1983 is hereby substituted. I/ , - 146 - 3.(a) The first charge against Stephen Alexander Lonsdale has not been proved, his grievance against dismissal must be upheld,,the dismissal is set aside and he shall be - reinstated as and from January 1, 1984. (b) The third and fourth charges against Stephen Alexander Lonsdale have been proved, but having regard to all the circumstances dismissal was an excessive penalty and suspension until December 31, 1983, is hereby substituted. 4. All four charges against Thomas Gaston have been proved, dismissal is the appropriate penalty and both his grievances are dismissed. 5. All four charges against Victor Bedeau have been proved, dismissal is the appropriate penalty and both his grievances are dismissed. . . . 6. All four charges against Mike Fitzwilliam have been proved, dismissal is the appropriate penalty and both his grievances are dismissed. - 147 - In the event that any difficulty arises in implementing this decision, the Board will reconvene on the request of either party made in writing to the Registrar. This was a difficult case and the Board must acknowledge the tireless work of counsel in adducing evidence and in presenting comprehensive arguments with outstanding ability. Dated at Toronto this 5th day of December 1983: EBJ:sol E. B. &iffe, Q.C. Vice-Chairman "I dissent" (see attached) H. L. Robinson Member E. R. O'Kelly Member , It is important that, five months after the close of the hearings in this case, the iMajority Award be issued as soon as ‘possible, that is to say, without the further delay which would be occasioned~ by the preparation of a detailed and fully argued dissent. It is also important that at least a brief outline of my dissent be Imade available and read concurrently with the Majority Award. Accordingly, what follows is a summary statement of the points on which I do not agree with the IMajority Award. However, before setting out the points on which I do not agree, I should say that I concur with the decision to reinstate the grievors Gordon, D’Andrea and ,, Lonsdale. On the evidence, there was nothing to show that they used excessive force on inmate Stalteri orthat they took part in the violence which was done to him. I do not agree that Gaston’s discharge should be upheld. Gaston was an exceptionally candid and persuasive witness. I do not believe that he used excessive force in helping to secure Stalteri and make sure that he was removed from the unit as quickly as possible. What he did was reasonable and responsible under circumstances of exceptional tension and danger calling for instant decision. No credible contrary evidence was presented against him. If nevertheless the Majority Award seems to conclude a year after tile event and -in the calm tranquility of prolonged reflexion that he imade an error of judgment, such an error by no means constitutes just cause for discharge. We should remember that Macaulay for one considered the punishment of such errors “altogether unjust and absurd”. Such errors, he wrote, -2- are not proper objects of punishment, for this reason, that the punishing of such errors tends not to prevent them, but to produce them. . ..It has no tendency to bring out those qualities which enable men to form prompt and judicious decisions in great emergencies. . ..We cannot conceive any- thing more likely to deprive an officer of his self-possession at the time when he most needs it than the knowledge that, if the judgment of his superiors should not agree with his, he wiff be (discharged) with every circumstance of shame. The Majority Award gives a second reason for upholding Gaston’s discharge, namely, that it was his arrival in the unit and his help is subduing Stalteri which set off the near riot that occurred. This conclusion is based solely on Caston’s own evidence. His impression of what sparked the near riot, formed in a moment of tension when anyone’s powers of cool observation would hardly be at , their most accurate and when his attention was entirely focused on Stalteri and his struggle with Proctor, was not supported by any other evidence and was in conflict with much evidence to the contrary. To invoke his impression as a principal ground for upholding his discharge seems to me thoroughly unfair. I do not agree that Fitzwilliam’s discharge should be upheid. The only evidence against him cited in the Majority Award comes from Davidson and Proctor. Their evidence is not credible, either in whole or in part. The Majority Award rejects most of it. Why then should it be accepted with respect to Fitzwilliam? Concerning Davidson and Proctor, the Majority Award observes that, . . . their testimony requires support of strong circumstantial evidence or from a credible witness. . ..To prove participa- tion there must be either an admission by the accused or convincing testimony from at least one credible witness, or at least strong circumstantial evidence. (pp. 142 and 143) Insofar as Fitzwilliam is concerned, there was no ,admission, no evidence from any credible witness and.no circumstantial evidence. I do not agree that Bedeau’s discharge should be upheld. This decision rests on the slender reed of Glen Semple’s evidence. The Majority Award states that, six~witnesses referred to Bedeau, althou h not aU claim to have seen his punches find their mark. B p. 103) In fact, aside from Davidson and Proctor, only Mr. Semple claims to have seen Bedeau strike Stalteri. By contrast, Mr. Joslin, the Salvation Army Chaplain, said with respect to his observation of the same events, I think yes, 1 didsee some of the blows. I did not see them all. But I saw some. However, with respect to Bedeau, Mr. Joslin said, Well, I did not see him do anything. I just happened to , to notice him amongst everything else. I just happened .,. to see him there. (p. 105, and 679. of the Transcript) Being black, Bedeau would have been especially easy to identify if he had been among Stalteri’s assailants. But Mr. Joslin did not so identify him. Neither did any other witness, except for Mr. Semple whose account of what he said he saw was at best improbable. In my opinion, the suspension for a period of more than one year of the grievers Gordon, D’Andrea and Lonsdale on the charge of obstructing the investigation is far too long. Under Section 22 of the Ministry of Correctional Services Act, correctional officers may not, 1” L-L . . -4- obstruct an inspection or investigation or withhold, destroy, conceal or refuse to furnish any information or thing required by an inspector for the purposes of the inspection or investi- gation. However, it is evident that the information which the inspector, Mr. Clair McMaster, was interested in was quite selective. When during his interview Lonsdale started to tell him about the incident in the unit and the situation there, Mr. McMaster replied, ,. ,: -; .--:- Y .I that he did not want to hear anything about the riot in the unit, and that that is not what he wanted from me. (p. 1577 of the Transcript) It became clear to the correctional officers involved in the affair that Mr. M&laster was primarily-interested in information which would implicate the six officers who were discharged. These were the six whom Davidson had identified. After long conversations with Proctor, Davidson went to the Superintendent of the Detention Centre, Mr. Dunbar, and told him that these six were responsible for beating up Stalteri. But according to the Majority Award, both Davidson and Proctor, “were deeply implicated in the incident of December 7th” and were in their evidence “attempting to absolve them- selves and identify the grievors as participants in the assault on Stalteri. (p. 142) They however were not penalized - an outcome which the other officers may have foreseen or at least suspected. This being so, their attitude of reserve to the investigation is at least understandable. ..,, i -5- The penalty to be impmed on the grievers should also take account of the fact that others who were interviewed showed an equal reserve and, with the exception of four correctional officers whose grievances are being heard by another panel of the Board, were not disciplined either. For his part, as noted, Mr. McMaster had no desire to be told all they knew. $.ccordingly, the written records of the interviews with the three grievors, which contain no more than an inevitably partial transcript of what was said, may be cause for some measure of discipline, but they certainly do not constitute just cause f& a suspension of more than one year. The extreme inequality of treatment deprives it of justice. If telling the truth, the whole truth and nothing but the truth is to be the governing standard equally applicable to all, as it plainly should be, then a suspension of more than one year for three grievors while others are not penalized is excessively harsh. I will only add that of all the witnesses who appeared before the Board, the one who told the smallest fraction of all that he had learned from the investigation was the investigator himself, Mr. McMaster. Finally, the majority Award has almost nothing to say about the context of the occurrence, of the conditions in the Detention Centre or of the events which preceded and contributed to the occurrence. This is a grave shortcoming. A full dissent will follow.