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HomeMy WebLinkAbout1983-0764.Lee.84-08-20: i i ! mmRl0 CROWN EwuxEcs GRIEVANCE SETTLEMEEiT BOARD Between: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Before: For the Griever : For the Employer: Hearings: March 7, April 2 and 23,-May.17, July 12, 1984 OPSEU (William Lee) - and - Griever The Crown in Right of Ontario (Ministry of Correctional Services) Employer J. W. Samuels Vice Chairman L. Robinson Member G. Griffin Member P. A. Sheppard Grievance Officer Ontario Public Service Employees Union C. G. Riggs, Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors 2. On Sunday, October 30, 1983, the grievor, together with another cof- rectional officer, was assigned to escort an inmate, Richard Thomas Wilson (also known as Gagnon) from the Toronto Jail. to St. Michael's Hospital. Wilson escaped during the visit. The grievor was d~ischarged. He was then a CO2 with five years' experience, a year and a half of university education, apparent intelligence and a perfect record. He says that there was no just cause for the termination. Our hearing lasted five days, and we received considerable documentary evidence. From all of this, the salient facts appear to be as follows: 1. The grievor was working from 7 AM to 3 PM on an overtime '. shift on this Sunday. Around 10 AM, he was called to the office of Mr. Smythe, the OM15 in charge of the Toronto Jail on that shift, and was asked to escort an inmate to St. Michael's Hospital. Mr. Smythe did not know who the inmate was, but referred the grievor to the health unit for further ,details. The grievor was given a TAP form (Temporary Absence Conditions) which had on it only the name of the sending institution ("Toronto Jail");~ the name of the escorting officer ("Mr.; W. Lee"), the instructions "Cuffs and Leg irons at all times", Mr. Smythe's signature as the authorizing superintendent, and the date ("30/10/83"). 2. The grievor went to the control office for the escort brief- case containing various items necessary or useful to the escort. Then he went on to the health care unit for the emergency, referral slip prepared by the nurse. This' piece of paper indicated that the inmate had injured his right ankle and it was to be x-rayed. He asked where the inmate was and was told he was back in his regular quarters, 4A south. 3. 3. The grievor went to 4A south and asked for Wilson. The i~nmate was not eager to go, but was told by the officer in the range that it was required. After some time, Wilson appeared. He was hobbling and was given crutches by the officer in the area. He was wearing a running shoe on his left foot, and was carrying the other. While running shoes, are not jail issue, it is not unusual for inmates to be~wearing them if prescribed by the medical personnel. 4. The two went to the Admission and Discharge Area (A & D), where the grievor put Wilson in a holding cell so that he could go to speak again with Mr. Smythe. ,He told the OM15 that, at the hospital, the leg irons would have to come off for the x-ray. Mr. Smythe then gave the grievor a special pair of hand-cuffs with a 30" lead. He told the grievor that instead of wearing leg irons, the inmate would.be cuffed at all times to another correctional officer, Mr. S. Church, who would.act as an "anchor". The grievor had never met Church (a COl) before. The grievor would apply the hand-cuffs to the two men, and- would carry the key. 5. The supervisor then gave the grievor an AIS (Adult Information System) card for the inmate. This document contains all the personal information necessary for the escorting officer to know the person he is accompanying, including the criminal record and any special matters. From the picture in the corner, it was obviously the wrong card. So the grievor went to the records office for the correct card. 4. 6. The AIS card told the grievor that Wil.son had a number of offences in his past--including, robbery, obstructing police, assaulting a police officer, break and enter, and escape from custody. We heard testimony that, at the Whitby Jail, before Wilson went to the Toronto Jail, there was a period of time when this inmate was transferred to and from court in police cruisers, and accompanied by police with shotguns. At the time, there was a hint that there was a plot to free Wilson and others. Other documents introduced in evidence disclosed that, at other insti- tutions in which Wilson had the good fortune to spend time, special mention was made that this inmate was an escape risk. For example, on the AIS card prepared on his admission to the Whitby Jail, some months before he came to the Toronto Jail, there appears in large print at the top "Escape Risk" and "Nat. P/V" (which-means “national parole violator”). No such special notation was on the AIS card given to the grievor for his escort. But in the list of offences, it is shown clearly that then inmate had escaped from custody, and the grievor had seen this. 7. Before leaving the institution, the griever double-locked the cuffs on the inmate and Mr. Church. Mr. Wilson's left wrist was attached to Mr. Chtirch's right. 8. Wh;,le the Standing Orders are absoluteIy,c'lear that an inmate is to be "frisk searched" before leaving the A & D area, the grievor did not do any search, and he saw no one else do it. We,heard from a correctional officer, assigned'for several years 5. I to this area, that the search is seldom carried out, but that it is the responsibility of the escorting officer. There was some dispute in the evidence concerning the meaning of a "frisk search".~ Given that the grievor did no search here, it is unnecessary for us to make a finding on what is required for such a search. But it might be advisable for management to make clear what it means inthe Standing Orders by the words "frisk search". 9. The inmate's clothes were neat, and he was not ordered to change. The Standing Orders provide that"the escorting officer should ensure that the inmate is dressed. in a clean set of institutional clothing, in good condition." Management witnesses suggested that "clean" meant "free from contraband". Union witnesses were firm that they had never heard such an interpretation of the word. "Clean" meant "free from soil, etc." In our view, if "clean" was intended to mean "free from contraband", management had to do more than it did to bring this home,to the employees. We are satisfied that the word is not known widely in the insti- tution to mean "free from contraband". 10. At the hospital, the party were directed to a waiting area. On the way, the .inmate asked to use the washroom. There were no- windows in the room, and only one door. Wilson was allowed to enter alone. The door closed on to the chain which joined him to Church. From all the evidence, including photographs of the door and washroom, we are satisfied that neither -the grievor nor Church was able to see all of Wilson's activities in the washroom. The grievor testified that, while he could see~the inmate in the 6. mirror while Wilson was standing, he lost sight of him when he sat down, and this was for 50 seconds to a minute. When the inmate came out, the cuffs seemed to be in order. 11. After the x-rays were taken, and the inmate remained c,uffed to Church all the time, the party went into a waiting area while the doctor read the x-rays. They moved to the smoking.area so that Wilson could smoke. They occupied four chairs near the archway out of the area--Wilson closest to the exit, then Church, then Lee, then the escort briefcase. They remained there for a while. After his cigarette, the inmate sat head down, his hands between his legs. There.was a clang, and Wilson was off through the exit, uncuffed. 12. There followed a chase fit for the~movies--Wilson, the two correctional officers and a 70-year old hospital security man who was in the hall. They headed up a stairwell. On his exit 1.;~. to the hall, Wilson knocked over two women on a guided tour of the hospital, under the direction of Mr. Philip McRae. McRae is a strapping 27 year:old, 6' l%", and weighing 210 pounds. He runs 20 miles per week. He is used to ejecting troublesome patients and others from the hospital, and obviously is not adverse to~using his strength if necessary. A nurse came up to him immediately to take care of the women and told &Rae to help the elderly security officer. He did so with relish. Up four flights of stairs, down a long hall, down four flights of ."' stairs and out onto the street. The Ministry acknowledges it was a good chase. 7. 13. The inmate was finally cornered on the east side of Victoria Street, just south of Queen Street. Wilson had his back to a building; Lee was some six feet away on the sidewalk; Church was behind Lee, four or five feet further from Wilson; and McRae was on the road. Wilson looked winded. He tried to persuade the officers to let him go--now that they were out on the street, they had no responsibility to hold him. He told McRae to "fuck off". It is clear from the evidence, and in particular from Mr. Lee's testimony, that the grievor gave no thought to recuffing Wilson to Church. During the chase, Lee had radioed the insti- tution, and he expected the po~lice to come along to retake physical control of the inmate. Lee was satisfied that the inmate would not run again. He was content to talk to the man and try to walk him back to the hospital. He testified that he didn't even know the cuffs were there on the street, but clearly he never intended toreapply the cuffs if there was any chance that Wilson would fight. He had no intention to get into a physical confrontation with the inmate. Yet, while Wilson was 5' lo", and weighed 165 pounds; Lee stands 6' tall, and weighs 200 pounds; Church stands 5' 1l";and weighs 160-200 'pounds (the evidence is unclear on this point, Inspector Dunbar suggested 160 pounds, while the grievor.suggested the two officers were roughly the same size. In photographs, ~the griever's suggestion appears correct); and McRae was much bigger. i4. The four men proceeded up Victoria Street, and crossed Queen. A few feet further on, Wilson stopped to rub h>,s ankle. The 8. two correctional officers.were on either side of the inmate. McRae, tired of all the talk and no effort to replace the cuffs on the inmate, and sensing that Wilson would bolt again, returned to his work in the hospital. 15. After a short time, the,inmate was off again. This time down into the subway where he hopped on to the end of a departing train. The grievor and Church saw him last disappearing into the tunnel. Counsel for the Ministry urged the Board to uphold the discharge because the grievor made a series of extremely serious errors; His primary responsibility as a correctional officer is to maintain custody of an inmate, and he must follow orders and use common sense to do so. In particular, he faulted the grievor for five specific errors. ~Firstly, he argued that the grievor's failure to frisk search may have led to-Wilson hiding a hand-cuff key. We don't really know how the inmate slipped the cuff. We heard evidence that, on rare occasions, inmates on the .. way to,and from court in a paddy wagon, unobserved in the back end, arrive with a double-locked cuff which is no longer attached to a wrist. In his report following his investigation into the escape, Inspector A.J. Dunbar found that when police arrested,Wilson they found a cuff key in his shoe. .While it couldn't be determined if Wilson used this key in the hospital, Mr. Dunbar reported that a member of the Metro Toronto Police confirmed that Wilson was in possession of the cuff key. In any event, in our view, this failure to search was clearly an error, and could attract discipline. However, the evidence does indicate that it is not common practice to do the frisk search;even though such a search is required in the Standing Orders. 9. " Secondly, he argued that the grievor erred in not ordering new clothes : for Wilson. We do not agree with this submission. The Standing Orders are not clear on this point, and there seemed to be no reason to do this. Thirdly, he argued that the grievor erred in not having constant visual contact with Wilson while the inmate used the washroom. We agree. Clearly this was an error, and may well have led to the escape. Wilson may well have released the cuff while sitting in the washroom, and he could have made it appear to be locked when he left the room. Fourthly, he argued'that the grievor erred in seating the party in the waiting area with the inmate closest to the exit. We agree. Common sense tells us that this was not a good idea. Fifthly, the grievor erred in not replacing the cuffs on the inmate 'once he was cornered on the street. In our view, the last point is the most serious. We are satisfied from all the evidence that the grievor did not see it as his duty to restore physical control over the inmate, if this involved a fight. He made this point during the investigations, he made the point in testimony before us, and his counsel urged it during argument. We simply cannot agree with the grievor here. Counsel for the Ministry is.absolutely correct that the primary duty of the ..correctional officer is to keep an inmate in custody. If the inmate escapes, the officer must do all that is reasonably within his power to~regain custody. This doesn't have to be in a standing order. Common sense concerning the nature and responsibilities inherent in the job dictates-it. While it might be useful 10. to give officers training on how to subdue an inmate on the street, it hardly seems necessary. The grievor did not do all that was reasonably within his power to restore physical control over the inmate. When Wilson was first cornered, it is clear that Lee, Church and McRae would have had little problem in overpowering the inmate and reattaching the cuffs to him. Clearly the grievor should have had the presence of mind to realize that Church was there and still had the cuffs attached to his wrist. Counsel for the Union urged us to cqnsider the errors committed by the institution and Mr. Smythe in failing to make special note of the inmate as an escape risk and to take special precautions in light of this risk. But none of these errors, if there were some, excusesthe griever's conduct, particularly in failing to keep Wilson in sight in the washroom, in seating the inmate closest to the exit in the waiting room, and most importantly, in failing to retake physical control over Wilson on the street. Counsel suggested that the police were late in arriving because of institutional error, and that the police should be expected to make the arrest. We disagree. The police may be summoned to help,.but in the circumstances, nothing prevented the grievor, with the help of the others, from reapplying the cuffs to Wilson. As well, he argued that Lee's responsibility is diminished because there were two correctional officers and it was not clear who was in charge or who had particular responsibility for searching the inmate, etc. We do not accept this argument. Firstly, the grievor was the senior officer. He was a C02, Church a COl. Secondly, the grievor was assigned to the escort at first. Church was assigned as an "anchor", when it was decided that Wilson shouldn't wear leg irons. Thirdly, in any event, both officers had responsibility to 11. see that custody was maintained and regained. The simple fact is that the grievor did~not do what was reasonable to.assure custody. In sum we have no hesitation in concluding that the grievor made serious errors which resulted in the ultimate escape. During the inmate's subsequent period outside of custody he represented a serious potential threat to the public at large. The grievor's failure to regain and maintain custody of the inmate in this case cannot be condoned and must be viewed most seriously. The grievor's conductdemandsasignificant penalty to bring home to him his responsibility and to make it clear to other correctional officers that their .primary responsibility is to maintain custody over inmates, and to do what is both reasonable and necessary to regain custody prcm@ly if an inmate escapes. However, clearly discharge is too heavy a penalty, and we ordered the griever's reinstatement shortly after the hearing concluded, pending our'award and final disposition of the matter. The problem for Mr. DeGrandis, the Super- intendent of the Toronto Jail, is that section 22(2) of the Public Service Act authorizes him to impose up to a 20-day suspension. Beyond that, he must impose .~ discharge. We are not fettered in this way. Our authority under section 19(3) ~of the Crown Employees Collective Bargaining Act is to impose any penalty we decide is reasonable in the circumstances. We shave considered the following matters: a. The grievor had a perfect record for five years. b. He was open and entirely forthright with his superiors during the investigation and with'us at the hearing. 12. I C. There is no reasontodoubt that he can be a good correctional officer and that, if the point is made clearly enough, he will fulfil his obligations, particularly his primary responsibility to maintain custody over inmates, and to do what is reasonably within his power to~regain custody if an inma~te escapes. d. There have been a number of escapes from the Toronto Jail, and for some, correctional officers have been disciplined. We didn't hear much detail about most of these incidents. The maximum % penalty was a 20-day suspension until Lusis. In Lusis, 579/82, - - this Board ordered the reinstatement of a correctional officer who was discharged for permitting the escape of an inmate from St. Michael's Hospital, and substituted a three-month suspension without pay. The.grievor's conduct was as serious as that in Lusis. _: Bearing these considerations in mind, we order that the discharge be vacated, and in its place there be substituted a three-month suspension without Pay. And we will remain seized to determine the amount of compensation due to the grievor, in the event that the parties are unable to-agree upon this themselves. ,. 13. Done at London, Ontario, this 20th day of September , 1984. L. Robinson, Member G. K. Griffin, Manber . 1. 2. 3. 4. 5. 6. 7. 8. 0 >. 10. 11. 12. 13. 14. 15. 16. 17. 1E. 19. 20. 21. 22. Report by A.J. Dunbar Grievance Form Hand-cuff and key Photograph of door Diagram prepared by McRae EXHIBITS Photograph in colour of Queen and Victoria Idem, in black and white A.I.S. Card Medical records Warrant of Committal Upon-Conviction 9901 Form re Transfer A.I.S. at Whitby Jail Idem Memorandum of April 27, 1982, etc. Letter of April 8, 1982 Memorandum-, Ju.iy 16, 1982 ~ . . . .Glossary of Correctional Terms Plan of Admission and Discharge Area Photograph pf waiting ioom . Photograph of Queen and Victoria Discharge letter -- Letter of March 19, 1984