HomeMy WebLinkAbout1985-1252.OPSEU.87-04-281252/85
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: Ontario Public Service Employees Union
Grievor 2.
-and-
The Crown in Right of Ontario
(Ministry of Correctional Services) Employer
Before: E. B. Joliffe, Q. C. Vice-Chairman
M. Perrin Member
A. G. Stapleton Member
For the Grievor: R. Wells
Counsel
Gowling & Henderson
Barristers & Solicitors
For the Employer: J. Hannah
Staff Relations Officer
Ministry of Correctional Services
Hearings: March 19, April 17 and 22 'June 20, July 15 and 18, 1986.
This matter arose due to a change in the methods of
interior patrolling by Correctional Officers at the Millbrook
Correctional Centre which commenced July 8, 1985. The policy
grievance, Exhibit 2, signed by the OPSEU President and dated
November 26, 1985, was as follows:
The.Union grieves that the employer is breaching~ Article 18.of..
the Collective Agreement in that they are requiring, Correctional Officers at Millbrook Correctional Centre to enter
inmate dayrcoms, twice each hour, to conduct security checks.
The Correctional Officers conduct these checks alone and the
Union believes that this procedure causes a serious. threat to
the Correctional Officer's health and safety.
The Union seeks an immedi&e cease and desist of this procedure
at Millbrook Correctional Centre.
As appears from the grievance itself, the employees'
complaint is that one officer is required to enter the day room
alone twice each hour during the evening when all or most of the
Wing's inmates are watching television or~playing cards there, an
inspection during which one or more of the inmates may express
resentment against an interruption of their recreational
activities. It is alleged that the requirement exposes officers
to unusual risk, sometimes evidenced by physical obstruction as
well as verbal abuse.
The Union's claim is based on Article 18.1 in the
applicable collective agreement:
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The Employer shall continue to make reasonable
provisions for the safety and health of its employees during the hours of their employment. It is agreed
that both the Employer and the Union shall co-operate
to the fullestextentpossible in the prevention of
accidents,and in the reasonable promotion of safety
and health of all employees.
The Union has also referred to the Occupational Health
and Safety Act, in which paragraph (i) of subsection 2 in section
14 requires an employer to "take every precaution reasonable in
the circumstances for the protection of a worker", a requirement
made binding on the Crown by section Z(1).
The Employer in this case denies there is any
unreasonable hazard in the patrols required and relies on Section
18(l) in the Crown Employees Collective Bargaining Act, which is
as follows:
Every collective agreement shall be deemed to provide that it is
the exclusive function of the employer to manage, which
function, without limiting the generality of the foregoing, includes the right to determine,
(a) employment, appointment , complement, organization, assign- ment, discipline, dismissal, suspension, work methods and
procedures, kinds and locations of equipment and c~lassifi-
cation of positions; and
(b) merit system, training and development, appraisal and
superannuation, the governing principles of which are subject
to review by the employer with the bargaining agent,
and such matters will not be the subject of collective bargaining nor ccme within the jurisdiction of a board.
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i The Employer’s new system of patrbls in the day rooms
was announced in a memorandum addressed to “all staff” on June
21, 1985, Exhibit 6, as follows:
RE1 BE’2URI.R CBWXS 09 HI,GS
On April 1, 1985, dsytlme security checks of the inmates fn
the wings .WBIX inatftuted to enhance the eecurity of the
Lnstitution. At the same tfma procssduras Were inltiatedr
for a 3 month trial period, that required Inmatea, remainIn
fn their cells durfng. dayroom actfvftfes, to exit from their
cells twice each hour so they could be vleued by the Control
*oopl officer. *. .
The procedures for checking inmates in their cells during dayroom
activltle~ have been reviewed and it la clear that they do
not provide adequate ascurity coveraga. Geveral alternative
methods have been explored and conaldered uneatiefactory.
A’ survey wa.s carried out across the Hlnistry and Hillbrook
c. c. is the only tlaxlmum Security facility where staff do
not enter’ the dayroom area to conduct security checks during
dayroom actl~itiea.
The reaults.of the survey and the inadequacies in our proceedures
were dlscusaed with the executive of Local 341 OPSELJ on June
25, 1985 at an E.R.C. Heetlng. In order to improve the
supervision of fnmatea and the security of the institution
our procecdures of checkfng inmates has been revised. Effective
July, 8, 1985, Wing offfcera will enter the dayroom twice each
hour and conduct a security check of the wing. A cover will
be provided for the wing officer. while making these ‘checks.
Should there be tension between the wfng offfcer and the inmates
Lor some reason, the backup offfcer may be used to make these
checks and the wing officer provide backup. It is recognized
that cells 9, 10 and 11 lti 10 Witig cannot be viewed from the
control lOORl, however, a T.V. camera and monitor till1 be
installed Co permit surveillance of this area before the security
checks ere implemented,
The inmatea will be advised of thfd change In proceedures by
the underpfgned.
Bhould any staff member wish to dl~cuss these proceedurea I
am prepared to meet with them on an i+.xJdual basis.
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On the same day, the following written announcement was
made to “all inmates,” Exhibit 7.
On April 1, 1985 procedures were implemented which required
inmates remaining in their cells during day-room activities
to exit from the cells twice each hour to be viewed by the
Wing Officer.
Effective July 8, 1985 this procedure will cease and
correctional staff will enter the day-room to conduct security
checks during day-roan activities.
Following the Superintendent’s Memorandum of June 27,
another meeting of the E.R.C. was held. This resulted in yet
another Memorandum addressed to “all staff ,” dated July 8,
Exhibit 11, making some minor modifications in the system.
RE: SE”,RITI CSECKS OF HXNGS
DGRIAG DAXRWH M!TIVITIBS
Further to my memorandum of June 27, 1985, regarding the above
subject, please be advised that en E.R.C. meeting wee held.
with then Executive of Local 341, OPSEU, on July 5, 1985, and
the procedure for making security checks of wings during dayroom
actlvitles, has been emended.
Effective July S,1985, one officer ~111 bc assigned ksch day
to make security checks of the .wlngs during dayroom activities.
The officer assigned will enter the wlnga twice each hour to
check any inmates remaining In their cells. Backup for these
checks will be provided by the Wing Control Room officer. These
rounds ~111 begin one-half hour after dayroam actlvlties cOmmence
end.wlll continue until one-half l+r before dayroom activities
CeeSe.
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' The firet round during dayroom activities will be mandatory,
however, if all inmates are in ,the dayroom and can be seen, ..:,' :
it will not be necessary for the patrol officer to enter the
wing for each ,subsequent round. A notation wfll be made at
each round, and signed by tioth the petrol officer and the wing
officer, indicating that all inmatca are in the dayroom and ‘.
accounted for.
Should inmates cpntinuously go td thelt cells and return just ‘. ,’
prior to the roinda, it is important that a Check of the cells’
be made in ca9e9 of this type.
The round made by the Shift Supervisor may be counted as one
of the regular dayroom checks by the patrol officer.
Should anything appear unusual durinq the security. checks,
or there appenrs to be a state of unrest, this is to be reported
to the shift eupervieor.
A review of this procedure will .be ~carried out ln three monthe.
All staff are to ensure this proc is adhered to.
_.
The evidence established beyond any doubt that the new
system was not welcomed by either the correctional officers or
the inmates. An example is Exhibit 17, an "Occurrence Report"
filed by Mr. K. Kelly, a C.0.2, on October 3, 1985, and addressed
to the Superintendent:
On this date I was detailed for the Wing Patrols. When I entered 4 Wing at approximately 2008 hrs. I was met immediately with yelling and jeering. As I preceded ddwn the East Side there were numerous comments made at me by inmates behind my
back such as "Get off the Wing," "Not another fucking patrol". As I got.near the back of the Wing I heard at least three times, "It's a good job it's you Kelly". Then I heard as I headed out
of the Wing, "It's a good job you're one of the better coppers here Kelly cause we've had about enough of this shit."
‘.
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L I was frankly quite surprised at the severity of the mood of the inmates and the tension in the Wing. I feel that it was a good
job that it was me doing that patrol. I have been involved in
my years here with situations of a crisis nature with inmates and feel that this could have escalated to a serious problem. I
did not specifically see any one inmate make these comments and realize not all the inmates in 4 Wing were involved, but I was
certainly made aware that the inmates did not want me in there.
Respectfully, submitted.
There has been some legalistic disputation about the
jurisdiction of this Board to decide an issue arising under
Article 18 of the collective agreement --- or Section 18 of the
Crown Employees Collective Bargaining Act --- and that issue will
be discussed in due course. Apart from the question of law,
however, the central issue raised by the Union turns on the
evidence, particularly that given by witnesses, and it therefore
becomes necessary to summarize their testimony.
The parties agree that Millbrook is a “maximum security”
institution, the only Correctional Centre of that kind, although
jails and detention centres also have “maximum security”
facilities. Moreover, it is common ground that inmates are.sent
to Millbrook because they are viewed by classification officials
as “problems.” This may happen because of an inmate’s record! or
because he is emotionally disturbed, suicidal, or habitually
aggressive and antisocial. Sentences may be up to two years less
a day, but most inmates serve 18 months or less due to remission
policies. Some of them of course are recidivists or may be
candidates for future admission to a federal penitentiary with
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longer sentences. There also seems to be agreement that certain
inmates are dangerous, not only to correctional officers but to
other inmates --- and to themselves as well.
Mr. Kelly gave testimony to the same effect as his' :,.
report. He said, however, that "it's the only time it happened
to me. I've done only one wing patro.1." He said he gets on well
with inmates, although a "minority" of officers do not. He is
Team Leader of a Crisis Intervention team, trained to deal with
emergencies, such'as a hostage-taking, if and when such an
emergency should arise. He had once been asked by Deputy
Superintendent Dawson to settle a hunger strike among inmates..
In his opinion inmates think time in the evening is "their own"
and feel threatened by frequent patrols.
Cross-examined, Mr. Kelly said he had been "involved in
two suicide attempts." He thought team-work among officers to be
"very important" and added that "a secure institution is a safe
institution'." He is in his eighth year of service at Millbrook.
In re-examination, Mr. Kelly said he preferred the
system in vogue prior to July, 1985, when each inmate in a cell
was required by the officer in the control-room to step out and
be recognized.' He considers the present system an unnecessary
risk and predicted that "some one will get hurt."
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’ The Union’s principal witness was Mr. Fred Crawford, a
C.0.2 who has worked at Millbrook since 1988. He described t~he
physical arrangements in nine wings, each having 26 cells, 14 on
one side' and 12 on the other. Between them is the day-room,
which contains three eight-foot tables with seats, and a
television screen suspended from the ceiling. The. day-room can
be viewed from the control-room through a window, although on
occasion vision has been blocked when inmates covered the window.
All cell doors can be locked and unlocked from the control-room,
as also the two doors giving access to the day-room through a.
lobby or "sallyport."
Arrangements in a 10th wing are different, there being
no day-room. It is reserved for inmates confined to cells by
reason of misconduct or for their own protection. They do not
have the same sports program in the afternoon as other inmates,
and remain under close supervision when led out for exercise or
medical treatment.
Most inmates, when weather permits, are offered sports
for one hour in the late afternoon and two hours on week-ends.
Those who choose not to go out must remain in their cells.
Inmates receive their supper from two officers at about
5.30. On most nights they are free to use the day-room or remain
in their cells from 6 p.m. to 11 p.m. On "shower nights," two
or three times a week, they shower between 10 and 11 p.m. In the
evening hours they normally watch TV or a film, play cards or
talk, often sitting on the floor against a wall. Of course there
are those who prefer to get some sleep in the evening, and these
must be viewed by the patrolling officer through~ a cell window or
an open door.
During the day, most inmates are employed in work-shops
under the supervision of industrial officers. Their shift is
from 8.00 to 11.40 a.m. and 1.00 and 4.30 p.m. A-maximum of 12
at a time are escorted to and from work. Perhaps eight or more
~from each regular wing work in the Jobbing Shop, between 1.0 and.
18 in the "Marker Plant" --- making car licence plates --- and, a
few in the laundry and tailor shop. A smallnumberof inmates in
"super-protective custody" (due to the nature of their offences)
are segregated and assigned to scrubbing and garbage collect~ion.,
Before April 1, 1995, there were no real security checks.
in the evening, although the shift supervisor might pass through
the Wing once. On the midnight shift, between 11.00 p.m. and
.ls once an hour 6.45 a.m., a patrolling officer inspected the ccl
--- increased at some point to twice each hour.
Ef'fective April 1, 1985, an inmate who stayed in his
Cell in the ev'ening would be required to emerge and be seen by
the officer in, the control-room, who had pictures of all inmates.
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If he failed to appear, he could be placed on “misconduct."
These precautions were necessary, Mr. Crawford said, because
there had been many attempted suicides, none of them successful.
When testifying on March 19, 1986, Mr. Crawford had done
three evening patrols through~the day-room since July, 1985. He
said the first step was to count the number of inmates in the
day-room, and of course this could be done from the control-room.
If not all were there he had to go in alone and check the
occupied cells. On the other hand, meals we,re always brought by
two officers, a third officer keeping watch from the control-
room. No problem arose when meals were being served: "We are
performing a service." Similarly, the sports .program was
popular; inmates received bats, balls and horseshoes, but did not
abuse them,
In the evening, Mr. Crawford said, there was a tendency
for inmates to crowd close to the T.V. Two or more sitting on a
table could block the view from the control-room. He added:.
"They won't move when you do a patrol, so you have to step
carefully. They deeply resent our intrusion into the day-room
and there have been threats. The first time I went through there
was the odd threat," but --- he added --- "1 usually have no
problem with inmates; they respect my fairness. An unpopular man
is told togeto,ut. And sometimes the window is covered while an
inmate gets beaten."
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i , Mr. Crawford estimated that if there were a general
fight, it would take an hour or more to rescue an officer. He
knew there was a Crisis Intervention Team on each shift, but "it
would take time to get them all there." In the evening there
were only.26 officers on duty to supervise 260 inmates, and they
all had their own work to do. Mr.~ Crawford agreed that some
officers are very unpopular and "they generate heat."
In cross-examination Mr. Crawford said his previous.
experience included security work and business for himself as
well as 15 yea,rs as a Police Constable. He had daily contacts
with inmates and often broke up fights among them. He agreed
that the job is "inherently hazardous" but thinks that w.ith
common sense many problems can be avoided.
The witness agreed that he receives all Standing Orders
(which incorporate Rules issued by the Ministry) as revised from
time to time, but he did not think they "deal with every
situation." He has access to ~inmate files. He conceded that
prior to April, 1985, there was no inspection of cells between 6
and 11 p.m. unless the Shift Supervisor happ,ened to do it. There
had been one escape late in March, It was due to the rotation
system that he had done few wing patrols, others had done more.
He confirmed that Millbrook has had no "major disturbance" in
recent years, although there have been assaults and many
misconduct cases.
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' Re-examined, Mr. Crawford said visits by ,the Shift
Supervisor are welcomed because various requests can be made to
him; such.as a request to be moved to a different wing. Asked to
suggest an, alternative to the present syste,m, Mr. Crawford said
that if inmates were."locked out of the cells" in the evening
hours, they could all be watched through the control-room window
and no "intrusion" by officers would be necessary.
The next witness was a Shift Supervisor, Mr. William
Currier, who testified under subpoena. Among his duties he is
Training Officer ahd Chief'Security Officer. He has had many
years of experience in Correctional institutions.
From a bucket, Mr. Currier produced an impressive
collection of weapons recovered during searches. These included
several knives, a hacksaw, a spoon shaped into a knife, bars of.
soap shaped in the same way and a toothbrush whittled into
a point. He has used the collection when teaching search
techniques. These objects and also,brewing materials are known
as "contraband."
Cross examined, Mr. Currier said the larger knives
(probably fashioned from material stolen in the shops) had been
seized in 1985. His own experience included an assault on him in
a day-room some years ago by an inmate who pushed penc'ils into
his neck, but injuries were slight and he was quickly rescued by
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o&her officers. Mr. Currier said serious assaults were
infrequent and there had been no killings at Millbrook, but he
gives courses inprocedures to beused in any emergency such as a
hostage-taking.
Mr. Currier thinks weapons are found most often,among
the "hard-liners." He said their usual excuse is that they need
weapons forself-defence. There had been an inmate in the
tailor-shop who misbehaved because he wished to go to a federal
penitentiary. A judge had commented that some inmates have that.
preference.
Mr. Heide Goedhuis had been President of the O.P.S.E.U.
local union at Millbrook and is now its Treasurer. Formerly a
C.0.2, he is an industrial officer, instructing and supervising
inmates in the Marker Plant.
In his experience, the witness said, an officer in the
control-room cannot see everything in the day-room when it is
crowded with inmates in a confined space. An officer alone would
be hopelessly out-numbered and it would be easy for an assailant
to be hidden from sight by other inmates. Originally counts had
been taken by locking inmates in their cells at 6 p.m. and 9
p.m. That system had been changed with the installation of
'television, after which inmates objected to interruptions. Mr.
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Gbedhuis said violent films are often shown throughout the
evening.
Cross-examined, the witness said a knife produced by Mr.
Currier had been made in the Jobbing Shop. Another knife had
been fashioned with material taken from the Marker Plant where
rolls of sheet steel were on hand. There are also ovens and
presses and one inmate uses a pair of tin-snips. Defective
plates are cut up and dropped in a bin, where inmates often pass.
by. Mr; Goedhuis said he has problems with certain rebels. and he
does not agree that inmates prefer to work. He considers some of
them are "dangerous." He claimed there had been some "tripping"
incidents. In one case the offender was identified and received
30 days in "close confinement." He himself had n'ever been
assaulted.
Mr. Goedhuis further testified that in the Det,ention
Wing assaults had been frequent and inmates were always removed
from their cells "one at a time." In the Jobbing Shop and Marker
Plant there had been dangerous inmates such as Lapointe and
Saunders, who had been found in one cell with weapons and break-
out t~ools. A few inmates had "federal experience.“ He
complained that officers don'tget sufficient information about
criminal records,' but admitted that some information is.
available in the shift supervisor's duty office. Officers' notes
about misconduct go into a file on separate sheets. He did not
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think inmates have yet accepted the new patrol system in the day-
raom.
The exploits of Messrs. Lapointe and Saunders were :
recounted in detail by Mr. Thomas Jones, a C.0.2, who was in
charge of No. 1 Wing on the night of March 24, 1985. Due to the.
suspicious behaviour of two inmates he visited the Lapointe cell,
which was empty. At Saunders' cell he found the window covered
from the inside, as was the four-inch space below the door. ,He
signalled control to open the.door, but he could not see much.in :
the cell. With a "metal object" in his hand, Lapointe remarked:.
"I could kill you right now." Saunders was then in another...',
corner of the cell. Mr. Jones went to a teIephone,.called for
help and saw the two inmates emerge fcom the Saunders cell with
knives in their hands. He was sen,t to the duty-room when the
C.I. Team arrived, In testifying, he was able to identify the
knife carried by Lapointe, who later went on to a penitentiary.
Saunders remained at Millbrook for some time: Mr. Jones once
observed him pushing metal through his cell window from the
sports ground outside. The metal was recovered on the floor of
the cell.
Cross-examined, Mr. Jones said the couple had begun
sawing through the outside window of the Saunders cell. It could
not be seen by the night light.
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Mr.- Jones said he had never been briefed about Lapointe,
but there were warning memos’about him in the Shift Supervisor’s
office, although that room was supposed to. be “out of bonds” for
him.
C.0.2 Alan Hoard, after 12 years of service, testified
he, feels very vulnerable under the present system of patrols.
Although he claims to have good relations with inmates, he was
deliberately tripped while inspecting cells on the night of March
4, 1985. Other inmates jeered at his discomfiture. The
offending inmate was seen from the control-room and received
close confinement. Mr. Hoard said that,being alone in the day-
room with 20 or more inmates is the equivalent of being a
“hostage.” He is a trained member of a C.I. Team, but said two
teams are required to quell a disturbance, and “we do our
training as two teams.” He insisted that “we get the problem
cases because the other places can’t handle them.” He added that
“the V.C.R. last night was a horror show - drilling through
someone’s head with a lathe.”
It may be interpolated here that Exhibit 16 is a list of
V.C.R. films’available for showing at the Millbrook Correctional
Centre. It was agreed by the parties to this arbitration that a.
number of them have actually been shown. These include such
outstanding examples of the cinematic art as The Texas Chain Saw
Massacre, Body Double, Nightmare on Elm Street, Friday the 13th
(Part 3 and 5) Scarface and Portrait of a Hitman.
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' Counsel for the Union called Ms. Maude~V. Barlow, a
consultant who,has played a prominent part in organizations '.
opposed to pornography in the media. According to her, she had
been recognized by the Court as an expert witness in a recent~
obscenity trial. For the Employer, Mr. Hannah objected to the
relevance of evidence such as hers. While reserving a ruling on
that objection, the Board decided to hear her testimony.
Mr. Barlow said she had seen several of the films listed
in Exhibit 16. They were characterized by extreme violence,
including torture and murder and frequently crimes against women.
Some could not be shown in Ontario theatres. She claimed it has
been proved by "massive research" that there is a causal link
between violence in the media, (particularly sexual violence) and
the aggressive tendencies of certain individuals. Also
recognized is a "desensitizing effect" on the general population.
Ms. Barlow referred to an extensive bibliography on the subject.
As part of his evidence Mr. Hannah called Dr. Glenn
Bauberger, who has been the Ministry's Chief Psychologist since
1968. He spends one and a half days a week at Millbrook.
Dr. Bauberger asserted he had never found a link between
films and the behaviour of inmates. Be was frequently involved
in assessing the character of inmates, particu,larly those placed
in segregation. An inmate may commit a violent act for many
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reasons, but the witness thought it could be "50 per cent due to
his history." It could also result from an emotional upset,
gambling debts, “badgering" by an officer or incitement by his
friends. Inmates, said Dr. Bauberger, tend to be "rigid, not
flexible."
Cross-examined, the witness said he had not seen any of
the films listed in Exhibit 16. He added that he tends to agree
with Professor Marshall of Queen's University (cited by Ms.
Barlow) that "pornography has an important part in child-
molesting --- but not incest." He conceded that violent films
may be "one factor" in violent crime but thought violence in the.
family background was a stronger factor. He said he had some
experience as a parole officer dealing with former prisoners in
bars and other places, and could therefore "empathize" with an
officer patrolling alone in a day-room, but he thought there was
“no risk at all" for many officers. For others who lacked "the
right qualities" the risk could be greater.
Mr. Norman Gould has been one of the Ministry's
inspectors since 1982. His previous experience, after 21 years
of police work, was as a Correctional Officer and Shift
Supervisor and includes service in or visits to 46 Correctional
institutions.
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The witness made the “Annual Routine Inspection” at
Millbrook for five days in September, 1983. His’ lengthy report,
Exhibit 18, was highly critical of the paper work done ~by
.of ficers ‘and others. He recommended certain structural changes
in the interests of security. Another important recommendation
w.as the following:
Inmates housed in institution wings are locked in their
individual cells at about 0800 hours, each day as wing
officers are assigned to other duties and tasks. Maximum
security inmates are left unattended and unsupervised for a
duration of nearly three to four hours. The same thing
happens during the afternoon shifts, however, the time lapse
is shorter.
As you are aware, all sorts of situations could happen while
inmates are not properly supervised or checked e.g. fire,
suicide, escape, sickness, heart attacks, and/or a multitude
of other problems.
Inmates locked in their cells to be checked at least twice
each hour. A watchman’s clock system to be used and rounds recorded in each individual wing log book.
Mr. Gould returned to Millbrook on March 24, 1985, to
investigate t,he attempted escape by Lapointe and Saunders. He
did not think it represented a serious threat. It had been
frustrated by the vigilance of officers on duty at the time.
Another five-day inspection was made by Mr. Ron V. Smith
in October, 1’9 8 4. His report was also critical of security
arrangements., ,In particular, he commented about lock-ups in the
morning and afternoon.
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Inmates who are unemployed are locked in their individual,. cells at about 0800 hours each day and Wing Officers are
assigned to other duties. The inmates are left unattended in
the morning for periods of 3 to 4 hours.. The same thing occurs during the afternoon, usually for a.shorter period.
Any eventuality could occur, fire, suicide, escape, illness
and/or a myriad of other things.
Inmates locked in their cells to be checked at least twice
each hour. A Watchman's .Clock system to be used and rounds
recorded in each Wing Log Book.
The Employer's last witness was Mr. Gary Preston,
Superintendent at Millbrook since December, 1983. Prior to that
time he had been Acting Superintendent for one year and Deputy
Superintendent for three years. Other experienc~e included
superintending or assisting at Peterborough Jail, Kingston Jail,
the Bay o,f Quinte Detention Centre, Perth and Brockville.
~Mr. Preston said he had not disagreed with the
recommendations made by Messrs. Gould and Smith, but until April
1, 1985, staff and funds were not sufficient to make change,
possible. Then came a trial period, discussions with the Union
and in July the introduction of regular day-room patrols in the
evening. He explained, however; that Exhibit 4 of March 29 was
issued by his deputy, Mr. Dawson, because he was on sick leave at
the time. Exhibit 6, the.notice to staff, and Exhibit 7, the
notice to inmates, werebothissuedbyhimself onJune 27, as was
the amending notice to staff on July 8, Exhibit 11.
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Mr. Preston held a special E.R.C:meeting on June 25, at
which Management was represented by the Regional Manager, the
Regional Personnel Administrator, the "Senior Ass't Corrections"
and himself. For the Union were President Goedhuis, Secretary D.
Murphy, Chief Steward J. Sinacori and Steward H. Guthrie. The
minutes of the meeting, Exhibit 21, make clear that employees
were opposed to day-room patrols, which is confirmed by Mr.
Preston.
Another E.R.C. meeting was held on July 5, minuted in
Exhibit 22, but representation on both sides was different. Mr.
Preston attended, but the Union group was led by Vice-President
Lennox.
Mr. Wells objected to the relevance of the minutes,
Exhibit 21 and 22. They are unsigned and no one testified as to
their accuracy. Nevertheless, whether the minutes of July 5 are
accurate or inaccurate, they at least disclose the flavour of
relations between the parties at the time and probably reflect
the views of both sides, which appear to have been reasonably
kxpressed. The minutes read as follows:
Mr. Shoom, Regional Director, thanked staff for meeting with
management officials on such short notice. It was clarified at the qutset that Millbrook Correctional Centre has excellent
staff, who display a professional approach to their jobs. Mr. Shoom, indicated that the Minister and Deputy Minister
- 23 -
requested that he be present to discuss any Staff Concerns
pertaining to the new procedure. Mr. Shcom, then explained ‘to
staff the background relating to this issue.
The background events highlighted, included previous Ministry
Inspection Reports and recommendations, pertaining to wing
checks, resulting in the final decision to physically enter
wings to perform checks at specified times. Management side
re-emphasized that all other Jails, Detention Centres and
Correctional facilities in the Province perform similar checks.
Management side reremphasized the need for the new procedure, which is consistent with other Ministry institutions.
Staff side expressed concern, that there is a perception that
current procedures involving wing checks are inadequate. Staff
. side stated that the current visual checks performed every 30
minutes are effective and that these checks avoid any physical
confrontation between inmates and officers. In addition staff
stated that the Correctional Officer, symbolizes an
authoritarian figure and at times typifies a surrogate figure,
which results in staff becoming targets for aggressive and
hostile inmates. Staff side argued that visual checks are as
effective as physical checks. There have been 28 documented
assaults since January 1, 1985, ranging from spitting on staff
and assault, sometimes involving time off work due to the.
injury.
Staff side stated that the criminal element incarcerated in
Millbrook Correctional Centre are some of the most violent in
Canada. Staff side reviewed several cases supporting this
point.
In addition, staff side stated that over time, security
procedures have changed relating to the serving of meals and
counts within Millbrook which has had an overall effect of
reducing the security structure within the institution. Staff side recognized that the implementation of a security guard
walk within the wings is not possible based on the design and
space available within Millbrook Correctional Centre. Staff
side concluded that the existing system of visual checks
implemented on April 1, 1985 is the safest for all concerned.
Staff side argued thatphysicalchecks would not improve the
effectiveness of wing checks. In addition, staff stated checks
do currently occur during the evening, excluding the dayroom
activities, and that these have been effective in the past.
Staff side re-emphasized that they are very concerned about
staff safety and asked what the current ~inadeguacies are with the current visual check system. Management side indicated that the Ministries inspectors and local’ management and regional officials assessed the situation and ‘alternatives and
-!
r
I
I
- 24 -
it was concluded that the most effective alternative was to
perform the physical checks.
It was clarified by management that wing checks need only be:
performed, if inmates are locked in their cells. If all
inmates are in the dayroom, the check is not necessary. The
officer assigned to perform wing checks would confirm with the
wing officer, inmate count and inmate whereabouts and would
sign the wing log book to that effect. This would be counter-
signed by the wing officer. (This procedure was confirmed by,
Mr.S.Taggart, Director, Inspector of Investigations Branch,
Main Office.)
In addition, it was clarified that the normal Shift
Supervisor's security check during the dayroom evening hours
occurs on a daily basis and an additional Correctional Officer
security check during the same half hour period would not be
necessary.
Staff expressed concern that the Officer assigned to the wing,
not be the Officer that performs the wing check. This would
avoid unnecessary confrontation, if the wing officer had
earlier, taken some form of disciplinary action on an inmate..
Alternative were explored, and management agreed that a
separate assignment could be established during the evening
hours, and a full-time officer would be assigned eachdayto
perform the wing checks.
Correctional Officers assigned to perform wing checks, would be
rotated on a daily basis.
In addition, Correctional Officers will continue to keep an
accurate record of inmates whereabouts, during dayroom
activities, recording those who remain in cells, as currently
practised.
Again, Mr. Preston, advised that he has spoken personally to all inmate wing cleaners and inmates were generally receptive
to the new procedure. In addition, in follow up to the
previous minutes of June 25, 1985, Mr. Preston will install
cameras in two additional wings, for additional surveillance,
on a trial basis, in six wing and one general population wing.
In conclusion, it was reiterated, that the security checks would be implemented on July 8, 1985, reflecting the above procedures and that a follow-up E.R.C. will be held in the
early fall of 1985, to evaluate the new wing check procedures.
Staff side, thanked management representatives for the opportunity to meet and discuss the new procedure but indicated
that staff are still concerned about staff safety resulting
frcm the new procedure.
Management responded, that they also were appreciative of the
frank but cordial discussion which was evident in the meeting,
pertaining to the new wing check procedures.
Notwithstanding a minor modification announced by Mr.
Preston in his Memorandum of July 8, it is clear that the
respective positions of the parties remained the same a year or
more later as they were in July, 1985. Management considers
that, for security reasons, occupied cells must be checked in
person by one patrolling officer several times throughout the
evening; the officers contend that since occupied cells can only
be inspected by entering the day-room and mingling with inmates,
the practice is. inherently unsafe and unsound.
Mr. Preston testified that originally a TV monitor was
installed in only one wing, but that by the end of June, 1986,
monitors had been installed in all but No. 5 and the segregation
wing. These gave a better view of what was going on at th,e
tables in day-rooms.
The Superintendent also confirmed that there had been
,’ .+ number of trippings and other minor assaults in the day-rooms
as well as verbal abuse. There was very little trouble on the
sports field although on one occasion several years ago an inmate
wielding a baseball bat had charged an officer, for which he
received confinement and lost his sports privileges for the
summer.
t would
- 26 -
Mr. Preston said inspection of the windows from outside
not be adequate. Further, the day-room ceilings are note
- 26 - ., :,'..
,,.
Mr. Preston said inspection of the windows from outside ,)':
not be adequate. Further, the day-room ceilings are not ~.. :,,,j.':.~
.high enough to permit installation of cat-walks like those which ,;I 1
exist at the Quinte Detention Centre. He knew of no alternatives ) ./'
:..
to searches: improvised weapons are often found in cells. Since .',
the Lapointe incident a metal detector has been used in the work-.
shops.
The Superintendent pointed but that certain risks are
unavoidable. Groups of inmates must be escorted to the sports
field and to chapel, where the lighting is dim. He did not
believe there was greater risk in a day-room than elsewhere. He
considers' that "hostage-taking is always possible," but the C,I. ..':-,~
Teams and others are trained to cope with such emergencies.
'The most serious assault,Mr. Preston could recall was
that on an officer in the work-shops who was stabbed with
scissors. He recalled that the assailant received a life
sentence.
Referring to the complaints of officers Crawford, Hoard
.and Kelly,' Mr. Preston said he does not consider that any of the
three have "a bad rapport" with inmates.
Mr. Preston said he sees inmates when touring the work-
shops duringlthe day and when they appear befo,re him on
misconduct charges. He agreed that under the Ministry's, mandate
- 21 -
management must accept responsibility for the safety of both the
staff and the inm,ates. With the latter, suicide or attempted
suicide is an ever-present danger and calls for regular
surveillance. There had been suicides "long ago" and,some
attempts in recent years.
Called t0 testify in reply, Mr. Fred Crawford said he
had done “inner perimeter" patrols: i.e. viewing windows from the
outside, both by day and by night. He could see the caulking on
the first floor. windows but only the windows on the second floor.
It was impos-sible of course to see into the cells. Night'lights
in the cells were very dim and every second light in the day-room:
was turned of~f after 11.30 p.m.
ARGUMENT BY THE PARTIES --
The question of this Board's jurisdiction was argued.
briefly at the hearing of this Arbitration. Mr. Wells sought
leave to make a written submission, with references to certain
authorities. Although the practice of making post-hearing
submissions is not one to be encouraged, the importance of the
matter is such that the board .has received and considered letters
from both Mr.Wells and Mr.Hannah written some weeks after'the
last day of hearing.
-
’ I
follows:
- 28 -
In Mr. Wells’ letter of July 28, 1986, he began as
At the close of my submissions in reply in the above-noted
arbitration, I was asked by the Chairman a question as to where
the jurisdiction of this panel is found to provide the remedy
requested in the Union grievance placed before it. I provided
an answer to the question at that time, but did not have with
me the authorities upon which I would rely in support of the
proposition that the remedial authority of the, Board is
exceedingly wide, or to use the language of the cases,
“unrestricted”, or “unconstrained”.
I am taking the liberty of enclosing two cases which I would
ask the .Board to consider.
In the unreported decision of Ontario Public Service Employees.
Union (Carol Berry et al) v. The Crown in m of Ontario (Ministry _-__-_ of Community and Social Services), I xrect the
Board’s attexion to page mof the decision of the.Bonourable
Mr. Justice Reid and in particular the first paragraph on that
page.
The judgment of Mr. Justice Reid, concurred in by Steele
and O’Brien, J.J., related to ‘a classification case in which
OPSEU sought review of a decision by this Board. At page 15
appears the foliowing paragraph:
The Board’s obligation under s. 19(l) is to decide the matter.
When looked at without the confinement imposed by Article 5.1.2
“the matter” grieved was wrong classification. If the Board
concluded that the classification was wrong, its mandate was to effect a proper classification. Its jurisdiction is
unrestricted. Its mandate is remedial. In making the decision it made the Board refused to decide the matter, it simply finessed it. In doing so it erred in law. Its error was so serious that, in my opinion, it falls into the category of cases requiring the intervention of this court, in accordance
with O.P.S.E.U. v. Forer, supra.
- 29 -
Mr. We ,lls’ letterwent on to cite another Divisional
Court judgment, that of Linden J. in R. v. OPSEU et al (1982) 35 --
O.R. (id) 670 at page 673, in which observations by Chairman
George Adams (about the Board’s “broad’ remedial authority) were
quoted, apparently with approval. At page 676 the Court agreed
with the reasoning of this Board in that case. There wa,s,
however, a dissenting judgment by Mr. Justice John Holland.
In Mr. Hannah’s letter of September 26, 1986, he
continued to rely on the language of Section 18 in The Crown
Employees Collective Bargaining Act and Article 27.14 of,the
collective agreement. He submitted that even if the Board finds
reasonable provisions for health and safety have not been made at
Millbrook, the remedy sought (a “cease and desist” order) would
not be within the jurisdiction of the board, having regard to the
restrictions imposed by Section 18(l) of the Act. He said that
“whatever the remedial authority~of the Board may be, it does not
include those matters that (in the words of 18(l)) will not be-
the subject of collective bargaini.nq nor come within the
jurisdiction of a board.”
Mr. Hannah also suggested that the Divisional Court
cases cited by Mr. Wells aro*e out of very different
circumstances. Further, he said, statements made by Reid J. (at
@ages 9 and 10) emphasized that provisions of the collective
,
- 30 -
agreementdo not override rights conferred by 18(2) of the Act on - ., .,,:'.',
individual employees. It follows, Mr. Hannah argued, that the
agreement cannot override management rights conferred by 18(l); :Y.
Mr. Hannah cited the decision authored by Professor
Palmer in OPSEU (J. Dickie) 314/85, at page 5, where it was held
that Section 18(l) gives management exclusive power to administer
the merit system. 2.
In the Employer's view any findings of fact by this
Board "must be based on the application of objective criteria to
the specific circumstances of this case... The board could tell
the Ministry what objective criteria the employer's provisions
would have to meet to provide for the reasonable health and
safety of its employees given the specific circumstances. Of
course the objective criteria themselves cannot be a procedure or
a work method or be inconsistent with the provisions of Section
18(l)."
the The above summarizes the submissions made on
question of jurisdiction. At the hearing of this case, counsel's
emphasis had been on the facts: in other words, a review of the
testimony given by various witnesses in respect of health and
safety. However, Mr. Hannah cited earlier decisions of this ~,'
Board: Haladay 94/78 (Swan); Thorn 82/78 (Adams); McQueen 430/80 --
(Oelisle); and,OPSEU 69/84 (Samuels). Mr. Wells referred to the
- 31 -
decision in Gonneau 227/81 (Teplitsky) in support oE his argument
that if Section 18(l) is paramount, then all health and safety
requirements are meaningless, including those in the Occupational
Health and Safety Act.
CONCLUSIONS
In this case conclusions must be reached on two very
different matters. The first is an objection to the jurisdiction
of the Board to decide the issue or direct a remedy, clearly a
question of law. The second is a factual issue: whether the--
safety of a correctional officer is unreasonably jeopardized when
he or she is required to patrol a day-room alone at regular
intervals throughout the evening hours.
The jurisdictional question must be decided in the light
of Sections 18 and 19 in the Crown Employees Collective
Bargaining Act and Sections 2 and 14(2)(g) in the Occupational
Health and Safety Act, as well as Articles 18.1 and 27.8.1 of the
collective agreement between the parties.
The lright to present a "Union,grievance" may be found in
Article 27.8:1. In this case the grievance wasduly signed by
the O.P.S.E.V. President and processed to arbitration thereafter.
- 32 -
The grievance was based on Article 18.1, in which the
Employer had agreed to "continue to make reasonable provisions
for the safety and health of its employees during the hours of'
their employment."
It is also required by law in paragraph (g) ,of
subsection (2), Section 14, in the Occupational Health and Safety
Act that "an employer sha.ll... take every precaution reasonable
in the circumstances for the protection of a worker." This
provision is made binding onthe Crown by Section 2 of the same
s .in which subsection (2) is perhaps even more important than
subsection (1):
2; - (1). This Act binds the Crown and applies to.an employee in
the service of the Crown or an agency, board, commission or
corporation that exercises any function assigned or delegated to
it by the Crown.
- (2) Notwithstanding anything in any general or special Act,
the provisions of this Act and the regulations prevail.
It is true that Section 18(l) of 'the Crown Employees
Collective Bargaining Act appears --- at first sight --- to give
management the unfettered and exclusive function to determine
"work methods and procedures”, as expressly stated in paragraph
(a) of 18(l).
Nev,ertheless, subsection (2) in Section 2 of the
Occupational Health and Safety Abt provides a complete answer to
the argument that Section 18(l) of The C.E.C.R.A. is paramount.
- 33 -
The answer is that the provisions of the O.H. & S. Act prevail
over Section 18(l) of the C.E.C.B.A. Specifically, Section
14(2)(g) of the O.B. & S. Act that the employer shall "take every
precaution reasonable in the circumstances for the protection of
a worker" is the paramount law and prevails over Section 18(l) of
the C.E.C.B.A. Section 14(2)(g) happens to be to the same effect
as Article 18.1 of the collective agreement. Moreover,. the 0.H.L
S. Act was enacted in 1978 --- after the C.E.C.B.A. had become
law.
For the reasons stated above, the jurisdiction of this
Board is not barred by Section 18(l) of the C.E.C.B.A.
What remains to be decided is whether the Employer in
fact has instituted a practice at Millbrook which fails to meet
its obligation under the law and.the collective agreement to take
every reasonable precaution to protect the life and ,limb of
employees.
It must be acknowledged at once --- as several witnesses
said --- that there are "inherent risks" in 'custodial work,
particularly at a maximum security Correctional Centre, the only.
one of its kind in Ontario. As in many other occupations, not
all risks are avoidable. Nevertheless, the intent of the law and
the agreement clearly is that risks that are in fact avoidable
- 34 -
' .
should be avoided by taking "every precaution reasonable in the
circumstances." Has this been done at Millbrook?
We have few comments to make on security arrangements at
Millbrook during the day or after 11.30 p.m. The only issue
raised by the Union relates to patrolling of the day-room during
the evening hours when inmates are free to amuse themselves ins
the day-room or rest in their cells.
The gist of the Union's complaint is that a wing officer
is exposed to unreasonable risk when required to patrol alone
through the day-room, checking on all cells which happen to be
occupied.
We recognize that there is a need to keep occupied cells.
under surveillance. If this were not done, an inmate could be
engaged in sawing through a window --- as was attempted by
Lapointe and Saunders --- or perhaps trying to make a brew or
even trying to commit suicide. For this reason during the period
from April to July, 1985, an inmate who remained in his cell was
required to step outside his cell from time to time and be
recognized by an officer in the Control-room. That system was
found to be inadequate: obviously it failed to disclose all that
might be happening inside the cell. On the other hand, it has
been pointed out that peering through a window may also reveal no
more than a recumbent form underneath a blanket --- illuminated.
- 35 -
- ’ *
only by the glow of a night light. Yet this is the same view a
patrolling officer gets on his rounds, two or three times each
hour during the hours after midnight.
Undoubtedly there is a problem in maintaining adequate
surveillance. There are 260 inmates, with 26, more or less, in
each wing. Of the staff complement, more than a third are on
duty during the day, fewer than one-third on the afternoon shift
and even fewer on the midnight shift. When inmates are in the
day-room, for meals or recreation, it is essential that one
officer be in the control-room where he can be in contact with.
the shift supervisor or other officers. Thus only one officer is
available to patrol the day-room.
Since staffing is limited, no one can suggest an easy
solution. In his report of September, 1983, Inspector Norman
Gould was highly critical of the fact that during the morning and
afternoon certain inmates were "left unattended and unsupervised
for a duration of nearly three to four hours.” More than a year
later Inspector -Ron. V. Smith made a similar criticism and also
recommended that inmates locked in their cells be checked at
least twice each hour. The Superintendent and his staff decided
that not all the recommendations could be implemented due to ladk
of funds and sufficient staff. It was not until April 1, 1985
(the beginning of a new fiscal year) that a change could be made.
Another change became effective three months later.
- 36 -
. .
There is no doubt that from a securitypointof view the
changes made in 1985 were a great improvement. Nevertheless, we
are not satisfied that sufficient careful thought and ingenuity
has been given to the problem throughout recent years by the
administration of the Centre or the Ministry.
We see no need for us to be as critical as the two
Inspectors were in their reports. We are, however, disturbed by
some of the facts which emerged and some of the.explanations
given in the course of the hearing. A few examples will suffice.
It was repeatedly suggested that since one-man patrols
are common at other Centres --- indeed it was said to be
"Ministry policy" --- the practice would also be appropriate at
Millbrook. For example, the Superintendent testified: "The more
staff get in there, the more they get to know the inmates. In
some medium and minimum security institutions the guards are
right in the wing with the inmates."
There' is an obvious flaw in such reasoning. It confuses
conditions in a maximum security environment with conditions in
those where "medium" or "minimum" security is deemed appropriate.
We point out that the distinction is clearly re~coqnized by the
definitions in: Section 1 of the Ministry of Correctional Services
Act. Further; all witnesses agreed that the inmates sent to
Millbrook are ~there because they are considered to be unsuited to
I
- 31 -
. cpnfinement elsewhere. In short they are classified as
"dangerous' --- to themselves and/or others.
A second example is illustrated by the experience With
Messrs. Saunders and Lapointe. These men were employed in work-
shops where they had access to pieces of sheet metal as well as
certain tools. They thus succeeded in fashioning .a hack-saw and
two knives which can be described as lethal weapons. Yet the
evidence is that only after this incident was a metal detector
used in the work-shops. Why not earlier?
At an earlier date, we are told, an instructor.was
stabbed with scissors, suffering such serious injuries that the
offender received a long sentence. It was not explained why an
inmate in "maximum security"~ should be equipped with or have
access to scissors.
At the Super intendent’s meeting with staff
representatives on June 25 there was a complaint made, recorded
as follows:
(61 (XTPLUNICATIMI --ANDLINEW:. --
Staff side indicated that there are times when information
relating to inmates is not communicated to Correctional staEf, which could jeopardize Institutional Security and the safety of
staff, eg.; assaultive behaviour, escape histories, sexual deviance, etc. Management side assured staff that whenever critical inmate related information is known, this will continue to be communicated as efEectively as possible to all
staff, eg.: memorandums alerting Shift I/C's and staEf, verbal communications during shift change-avers, etc.
- 38 -
. !. The same complaint was voiced by several witnesse.s at,:.
the hearing of this' case a year later. It is obvious that
relevant information about inmates should be conveyed fully.and.
promptly to all officers concerned.
Following the installation of a closed circuit tele-
vision monitor in No. 10 wing, management at the meeting with
staff on June 25 undertook to examine the feasibility of
installation of TV monitors in all other wings. At the meeting
of July 8, it was announced that monitors would be installed in
two more wings. At arbitration in 1986 the Superintendent said
installation in all wings had just been completed. Why this was
not done long ago is difficult to understand. Thousands of
monitors have been used in shops and banks for many years.
Perhaps the most important change in the conditions of
prison life in recent decades has been the advent of television
entertainment. It is unknown how much careful thought was given ~1
to a change which can only be described as revolutionary. What~
is known is that the fare offered at Millbrook, particularly in
the form of VCR shows, was --- to say the least --- highly
inappropriate;
Exhibit 23 is a page from the Ministry's Manual, issued
-in May, 1983.' It is as follows:
:_
.,,
..:
.
.’
:,
- 39 -
Showh of Restricted Films
The Theatres Act states as follows:
"No person apparently under eighteen years of age shall be
permitted to purchase a ticket of admission or be granted
admission to or permitted to remain in a theatre where a
film classified as restricted entertainment is about to be
or is being exhibited."
As well as carrying 'out the provisions of this Act as it
concerns inmates under the age of 18 years, Superintendents are
asked to review their selection procedures of films, keeping in
mind the Ministry's policy that films will not be shown that, contain excessive violence, obscene sexual material, or which
glamourize chemical abuse. It is appreciated that there may be
some difficulty in selecting present day films. using the above.
criteria. However, it is felt that closer screening in the
selection of film for our inmate population will foster a
better type of film entertainment.
Video Cassettes
Video Cassettes labelled "Private Home Use Only" must be
obtained from a licensed producer representative. Do not
purchase/lease video cassettes form video stores or departmz stores.
Superintendents are asked to apply the ministry's ground rules
associated with showing "Restricted" films, as outlined in this
section of the manual.
Sectiol 4 of the Ministry of Correctional Services Act
makes the follow i ng statement:
4. It is the function of the Ministry to supervise the
detention and release of inmates, parolees, probationers and
young persons and to create for them a social environment in
which they may achieve changes in attitude by providing training, treatments and services designed to afford them
opportunities for successful personal and social adjustment in
the community, and without limiti.ng the generality of the
foregoing, the objects of the‘ninistry are to,
. . . . .
- 40 -
(d) provide programs and facilities designed to assist in the
rehabilitation of inmates and young persons;
. . . . .
(i) provide prcgrams for the prevention of crime.
These are worthy objectives, suggesting that a purpose
of incarceration is the rehabilitation of the offender, if that
is possible.
What no one can explain is just what contribution to
rehabilitation can be made by a film such as "Portrait of 'a
Hitman” or "Scarface'". How much thought, if any, was given to
such choices? Are these --- to quote words in the Act ---
"programs for the prevention of crime"?
It is not necessary to choose between the con.flicting
views of Ms. Barlow and Dr. Bauberger. Many of the films shown
at Millbrook for the edification of inmates were manifestly
contrary to the requirements of the Act and also the professed,
policy of the Ministry.
There is also doubt as to how much careful thought was
given to the patrolling system instituted in July, 1985. The
principal argument advanced in its favour is that one-man patrols
are common practice in other Centres. The other Centres,
however, are not “maximum security.” By definition, Millbrook
receives the,most difficult and dangerous offenders. Most of
c 41 -
the; behave reasonably well, since remissions shorten their
sentences; the Superintendent said the average stay is only about
six months. A few misbehave and are punished. And there will
always be a few like Lapointe, of whom an Assistant
Superintendent wrote a memo, Exhibit 12, to "all supervisors,"
which was not given to the wing officers who had to cope with
Lapointe:
You are advised to use caution when dealing with the
above mentioned inmate as he can be aggressive and
violent.
He is also apparently quite good at making and
concealing weapons.
We have nothing to say about one-man patrols at other
Centres. In .this case we are not called upon to decide any
practice in vogue elsewhere.
Taking into account the fact that Millbrook is "maximum
security" --- ~unlike other Centres --- we find that one-man.
patrols in' the day-rooms at Millbrook fail to satisfy the --
requirements of Section 14 in the O.H. L S. Act and Article 18.1 ~: '."
in the collective agreement. We think wing officers have '~'~
legitimate grounds for apprehensions that they are exposed by the
system to unreasonable risks. It is one thing for a party of
officers --- or two officers --- to mingle with'inmates. It is
an entirely different matter for one officer to do so alone,
- 42 -
in Jparticularly when it is evident and indeed inevitable that tt
intrusion will be resented by inmates.
In short, it has been e~stablished by the evidence that
this grievance must be upheld.
We have been asked to issue a "cease and.desist"'order..
In our view this would be premature. We think the Ministry
should be given an opportunity to devise and in,stitute a better
system as soon as possible. This should be done in consultation,
with the Union. We do not think it is beyond their capacity t0
do better.
Although we are declining to select alternatives at this
time, certain changes come to mind. Most of the oEficers who
testified during this arbitration expressed a preference for the
system which was on trial between April and July of 1985. It
had, however, certain weaknesses. If the occupant of a cell
failed to step out Andy be recognized, an officer had to go in and
investigate. In the case of Lapointe and Saunders, whose
behaviour seemed suspicious, a wing officer investigated alone.
Finding that at least one of the inmates was armed hehad to flee
and call for help. He could have been stabbed before getting
away. In our view, an investigation of suspicious circumstances
should be carried out by two oEficers, not one. If this would
- 43 -
me-a;. bringing another officer from elsewhere, so be it. Taking i
that precaution could one day avoid loss of life.
A possible variation of the previous system would be the
following. At appropriate intervals the TV or VCR could be or
might be turned off while inmates in the day-room take a seventh-
,inning stretch. Any inmate in a cell who failed to .step Out
would require investigation. For this purpose at least one other
officer should be called in to join the wing officer. No doubt
it.will be said that other officers cannot be spared from their
normal duties. In fact they are spared whenever a C.I. Team must
be called. .Alternatively, the shift supervisor could enter the.
scene.
The above are only suggestions as to alternatives ,which
may be considered by the parties. ~When they do, it must be
clearly recognized that Millbrook, for very good reasons, is
supposed to be a maximum security institution and cannot be
administered in the same way as other Centres.
In summary, the Board has found a violation of Article
18.1 in the collective agreement, and it is so declared, The
parties 'are obliged to govern themselves accordingly and seek an
acceptable alternative to the present practice.
In the event that the parties cannot agree within 90
days from the date hereof, we are retaining jurisdiction and will
convene another hearing on the written request of either party.
Dated at Rockwood th ,is
28th day of April , 1987
,
E.,,B. Joliffe, Q. C.
Vice-Chairman
.A. ,Gz Stapletin,-&nber
EBJ:sol