FPSLREB Decisions

Grievance referred to adjudication

[1]   Timothy Rose is grieving the decision of his employer to terminate his employment as per the grounds set out in a letter dated February 18, 2005. The grievor’s employment was terminated as a result of his involvement in a security incident involving inmate A on October 18, 2004. The grievor was found to have been in breach of the Standards of Professional Conduct and to have committed numerous infractions of the Code of Discipline. The misconduct was judged to be of such a serious nature that it contravened his “conferred obligation as a correctional officer and peace officer.”

[2]   More specifically, the employer’s decision was based on findings enumerated in a letter requiring him to attend a disciplinary hearing dated February 3, 2005 (Exhibit E–2). These findings are as follows:

. . .

Section 5 – Responsible Discharge of Duties

“An employee commits an infraction if he or she fails to conform to, or to apply, any relevant legislation, Commissioner’s Directive, Standing Order, or other directive as it relates to his or her duty.”

1. During the strip search of a compliant inmate, there were seven officers, including yourself, behind the privacy screen observing the search. This contravenes CD 566-7 – Searching of Inmates, which states that only two officers should have been present behind the privacy screen.

Paragraph (j) – “An employee commits an infraction if he or she, willfully or through negligence, makes or signs a false statement in relation to the performance of duty.”

2. The observation report you submitted was incomplete in that you omitted the following information:

   • You failed to mention that the inmate was on the floor near the shower area.

   • You failed to mention that the inmate was bleeding.

Section 6 – Conduct and Appearance

Paragraph (a) – “An employee commits an infraction if he or she displays appearance and/or deportment which is unbecoming to an employee of the Service while on duty or while in uniform.”

3. You used excessive force against [Inmate A] by kicking him in the buttocks while he was entering his cell in the Segregation Unit.

4. You participated in a concerted effort to conceal the excessive uses of force and other events.

Section 8 – Relationships with Offenders

Paragraph (a) – “An employee commits an infraction if he or she maltreats, humiliates, harasses, and/or is abusive, by word or action, to an offender or the offender’s friends or relatives.”

5. You used excessive force against [Inmate A] by kicking him in the buttocks while he was entering his cell in the Segregation Unit.

Paragraph (g) – “An employee commits an infraction if he or she fails to report situations of mistreatment of offenders by employees.”

6. You failed to report your witnessing of the excessive use of force on [Inmate A] near the shower area in Segregation.

7. You failed to report the verbal threat Officer Wry made against [Inmate A] while the latter was on the floor.

. . .

[3]   The grievor argued that, although he admitted having assaulted inmate A by kicking him in the buttocks, the termination is a disciplinary measure that is unwarranted in the circumstances.

[4]   The employer did not present evidence regarding paragraphs 4, 6 and 7 of the letter. It also stipulated that, in fact, paragraphs 3 and 5 relate to the same act of misconduct. The employer presented three witnesses, and the grievor, who also testified, presented four witnesses. 

[5]   The inmate involved in the incident did not testify. Both parties agreed that this should not be construed to have any meaning. The kicking incident is admitted and the video evidence is clear as to its delivery.

[6]   In evidence (Exhibit E–11) is a recording of parts of the events of October 18, 2004, being the events at the origin of the employer’s decision to terminate the grievor. I visited Dorchester Institution on September 12, 2005, accompanied by the grievor and his representative, as well as representatives of the employer, Karen Poirier–McLellan and counsel. The group proceeded through the facility, viewing the different locations at which the events in question took place, as well as surveying the locations of the different cameras that recorded part of the events.

[7]   On April 1, 2005, the Public Service Labour Relations Act, enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force.  Pursuant to section 61 of the Public Service Modernization Act, this reference to adjudication must be dealt with in accordance with the provisions of the Public Service Staff Relations Act, R.S.C., 1985 c. P-35 (the "former Act").

Summary of the evidence

Background

[8]   The grievor is a correctional officer at the CX-1 group and level. He work ed at Dorchester Institution, a medium-security institution located outside of Moncton, New Brunswick, for eight years. Prior to this, he worked for one year with the Prince Edward Island Community and Correctional Services. The employer acknowledged at the outset that the grievor’s disciplinary record, up to the incident in issue, was without blemish and that he was recognized to be a good and competent officer. The employer later stipulated to the fact that the grievor was highly thought of and was a credit to his profession.

[9]   Inmate A is described as a big man who is physically and mentally challenged. He has difficulty in walking and keeping his balance. It was not his first stay at Dorchester Institution or other regional institutions. He was considered to be a demanding inmate, and he was known by the officers and the inmates to be an arsonist. As such, he was not generally liked by the other inmates.

[10]   On the evening of October 17, 2004, a fire was set in the laundry area of Unit no. 1; an evacuation was performed. The officers suspected inmate A of having set the fire. On October 18, 2004, Officer Dave Price made the decision to lock up inmate A in his cell for his own protection and to ensure control of the situation after hearing that the inmates also suspected him of having set the fire the previous evening.

[11]   Officer Belinda Price communicated the order to inmate A to go to his cell for lock-up at approximately 8:15 a.m. The inmate refused to obey the order and started to protest verbally. Officer Dave Price heard about the problem. He was joined by Officer Wry and they both proceeded to the cell area. Although ordered to do so a few times, inmate A refused to go to his cell. Officer Dave Price then advised him that if he did not obey that order he would be sent to the Segregation Unit. At that point, the inmate became very agitated and threatened to throw the cup of coffee he had in his hand at the officers. He also tried to force his way past Officer Price.

[12]   Consequently, the inmate was subdued and restrained by Officers Wry and Dave Price while Officer Belinda Price used her personal portable alarm system (PPA) to request further assistance. Inmate A was handcuffed. Officers Gould and Wry then escorted the inmate out of Unit no. 1 to the Segregation Unit. They were accompanied by Officers Dillon, Holmes, Dunne and Perry. This procedure was considered to be normal under the circumstances.

[13]   At some point during the entire incident, the inmate hurt his head and blood appeared on his forehead. Some blood was smeared on the wall in the Segregation Unit near the shower area and officers were worried that there might be smeared blood on their clothes.

[14]   Officer Wry first testified that the inmate fell to the floor when the group came around the corner to the shower area, but later explained that the inmate actually, of his own accord, slumped to the floor. Considering that the inmate was a heavy man and that most of the officers were exhausted from the tossing around in Unit no. 1 and by the long walk down the stairs and through the first range of the Segregation Unit, they did not try to lift inmate A from the floor. Rather, they removed the handcuffs in order to allow him to get back on his feet by himself, despite the fact that the inmate was verbally abusive at the time. He was calling them names and threatening reprisals. He was also threatening to throw blood at the officers. His face was smeared with blood. The removal of the handcuffs happened to be difficult because they had been put on in reverse. Finally, the inmate got up on his own, putting a hand on the wall to stabilize himself.

[15]   Officer Wry explained that he did not mention the threats from inmate A in his report because they are common incidents and officers do not report on all details of an event. Threats by inmates are a regular occurrence. Also, he did not feel the need to record the fact that the inmate was on the floor because, in fact, the inmate had slowly slid down to the floor. Officer Wry confirmed that the inmate was verbally abusive in the strip–search area and was refusing to wipe the blood off his face.

[16]   According to Officer Wry, Officer Dave Price told him, about 45 minutes after the incident was over, that it looked like they had cut the inmate on the forehead. Officer Dave Price recorded that event in his observation report at 9:35 a.m. the same day. Officer Wry responded to Officer Price’s comment by indicating that he knew that the inmate had been injured. He assumed the inmate must have been cut when he was against the wall in Unit no.1, at the very beginning of the incident. At that time, the inmate was physically non-compliant, pushing the officers against the wall. However, Officer Wry was not aware of the precise moment this happened. He realised that the inmate was cut only when he saw the blood on his face in the Segregation Unit. He also testified that he notified Warden Mills three times of that fact. In his view, the Warden seemed more concerned with the series of events which happened in the Segregation Unit rather than those of Unit no.1.

[17]   This spontaneous use-of-force incident had to be recorded as per Commissioner’s Directive 567-1, Use of Force (Exhibit E–10). Each officer completed and signed a report to that effect (Exhibit E–4). Inmate A filed a complaint with the Royal Canadian Mounted Police (RCMP) with regard to the assault (the kicking incident) by the grievor. The employer conducted an inquiry with regard to the incidents. The grievor later pleaded guilty to the assaults charges and was given a conditional discharge.

The investigation process

[18]   Officer Darrell Blaquaire has been a correctional officer for 19 years. In October 2004, he was Coordinator of Correctional Operations (CCO) at Dorchester, group and level CX-3. As such, Officer Blaquaire was in charge of the use-of-force reporting process. The witness explained that process and his involvement with it, with regard to the October 18, 2004, incident.

[19]   Officer Blaquaire witnessed the exit of inmate A from Unit no.1. He was surrounded by five or six officers. Two of them had the inmate in a wrist lock. Officer Blaquaire noted a trickle of blood on the inmate’s forehead. He also noted that the inmate was not resisting at that time and that the group went down the stairs very quickly. He testified that in all likelihood, the inmate, not a very steady person on his feet, did not fall down only because the two officers on each side were holding him up.

[20]   Officer Blaquaire did not see the grievor. The witness then proceeded to the regular morning briefing meeting and about 45 minutes later returned to his office. Shortly after that, he was asked by Deputy Warden Davidson to make his way to the Segregation Unit to take a statement from inmate A. It was approximately 10:45 a.m. The inmate made his statement and Officer Blaquaire put it in writing for him. Officer Blaquaire also obtained confirmation that there had been blood cleaned up in the shower area in the Segregation Unit. He took pictures of that area.

[21]   Officer Blaquaire also explained the usual process for use-of-force reporting and how this process was carried out in the present circumstances. The paperwork in this regard is found under Exhibit E-4. The objective of such reporting is to ensure compliance with the Situation Management Model. Based on the degree of the incident, the model provides a measure of the intervention tools to be used in a continuum, with constant evaluation and re-evaluation of the situation so that the intervention can be adapted in a timely manner. Officer Blaquaire also confirmed that the inmate made a telephone call to the RCMP and filed a complaint.

[22]   The witness then explained that the use of a camera is a standard practice in the case of planned use of force. However, this incident was spontaneous and the camera was not a requirement. From what he heard and read in the reports, it appeared that there had been appropriate use of force in Unit no.1. However, in his opinion, the strip search did not meet with the standards. When the inmate is compliant, only two officers are allowed behind the screen with him. Also, the officers are not supposed to clean up blood themselves or pick up bloodied clothing. This is a health hazard. Someone with special training, usually an inmate, does this task. It seemed that some officers had taken it upon themselves to clean up the blood in the shower area.

[23]   All information, including the inmate’s statement and all reports, were then delivered to the Warden, who has the authority to decide if an investigation is warranted; an investigation did ensue. The fact–finding inquiry was conducted by an outside party, Ed Muise, who was Acting Warden at Springhill Institution at the time of the incident.  He is presently Acting Warden at Dorchester, in the absence of Warden Mills. He was assisted by Vivian McDonald, a manager at Dorchester Institution. Their report was submitted to the Warden on November 26, 2004 (Exhibit E–5). It explains the methodology used. The two investigators met with 25 officers and inmates. Some 10 officers, identified in Annex “A” of the report, appeared for interviews but declined to answer questions on the advice of their representative. The grievor was one of them.

[24]   In the course of this investigation, Mr. Muise and Ms. McDonald came upon the video recording of the events from a number of cameras located at the end of the ranges in Unit no.1 and in the Segregation Unit (Exhibit E-11). Mr. Muise testified with regard to the investigation process and to the events as they unfolded in front of the cameras.

[25]   Mr. Muise also confirmed that the order convening a fact–finding investigation, sent in the form of a memorandum from Warden Mills, included a warning to the officers that this process could lead to disciplinary measures (Exhibit E–5, Annex C). In the notice of the dates for each individual interview, he notified officers of their option to arrange for representation (Exhibit E-5, Annex D). He also had prepared a pre-interview statement which was read to each interviewee (Exhibit E-6) at the beginning of the meetings.

[26]   At the time of the incident, the video recording system at the institution was under review. Not all cameras at Dorchester were working or recording and their setting was not accurate as to the time and the date. In the process of investigating the fire incident of October 17, 2004, the recordings from the appropriate cameras were reviewed. It was then discovered that some cameras had been working and had, in fact, also recorded the events of October 18, 2004. All other cameras involved were then verified and their recordings were turned over to the investigators of the October 18, 2004, use-of-force event.  

[27]   Mr. Lewis was local president of the UNION OF CANADIAN CORRECTIONAL OFFICERS – SYNDICAT DES AGENTS CORRECTIONNELS DU CANADA – CSN (UCCO-SACC-CSN) at Dorchester Institution. He explained the bargaining agent’s stand with regard to the fact-finding investigation conducted by Mr. Muise. In the bargaining agent’s view, this is not a recognized process. The letter accompanying the order convening the investigation stated that disciplinary measures could follow. The process was, therefore, interpreted to be disciplinary in nature. The use of these fact-finding processes in a disciplinary context was the subject of an ongoing dispute between management and the bargaining agent at the institution. Officers were instructed not to cooperate in these processes.

[28]   Mr. Lewis confirmed that the grievor stopped at his post in the Segregation Unit to inform him regarding the situation with inmate A. The grievor was walking far behind the group. They talked for a few minutes. The grievor then walked down the range, following the group. Officer Lewis did not see inmate A on the floor. He wrote and sent a use-of-force report because he was asked to do so on October 25, 2004. According to him, this is not normal procedure. He had never filed such a report when an inmate was brought in while he was on duty to the Segregation Unit.

The events of October 18 2004 from the grievor’s point of view

[29]   On October 18, 2004, the grievor began his shift as usual. He was assigned the task of internal escort officer for the day. His morning briefing included an instruction that officers should keep an eye on inmate A, who was suspected of having set a fire the previous night in the laundry area of Unit no. 1. The grievor noted that officers could sense the tension amongst the inmates on that morning.

[30]   His first duty of the day was to escort an inmate to the administration sector. As he proceeded with this duty, he received a call through the PPA. He immediately aborted his escort of the inmate, making an agreement with him to resume that duty later and leaving him with another officer. He then proceeded to the central area, called the dome area, and found a group of officers accompanying an inmate to the Segregation Unit; there was yelling and confusion. The group was moving briskly down the stairs. The grievor ensured that other inmates stayed back.

[31]   He then followed the group through to the Segregation Unit, a few paces back. When he reached the halfway point of the Segregation Unit, the officers’ post, he stopped to inform Mr. Lewis that inmate A was being locked up because of the incident the evening before, namely the fire. During the time that he spoke to Mr. Lewis, the group was at the far end of the range where the shower area was located.

[32]   When the grievor later caught up with the group they were at the strip–search area. He heard a lot of yelling. Officer Wry was giving directions to the inmate to wipe off the blood smeared on his face. The grievor hesitated to enter the area but went behind the privacy screen because of the level of noise and because two officers were complaining that they might have blood splatter on them and wanted this to be verified. Officer Gould asked the grievor to examine his clothing. Officer Dillon had the same concerns. The grievor did not take part in the strip–search process, as he was in fact, busy with the other officers checking their clothing for blood smears.

[33]   The Commissioner’s Directive regarding the search of inmates, Directive 566-7 (Exhibit E-10), provides objectives and principles for such a procedure. This procedure requires, at section 12, that a strip search of a cooperative inmate be conducted by an officer of the same sex, in a private area, in the presence of a witness. Section 12 also states that [Translation] “this ratio may be augmented in the case where an inmate is uncooperative at the time of the search.”

[34]   The grievor described the inmate as being non-compliant at that point, refusing to wipe his face as directed by Officer Wry and being verbally abusive. He was, however, physically compliant. Once the strip search was over and the inmate had washed his face, he was directed to move forward to the cell area; he hesitated. The inmates that were already in the area were heckling inmate A, unhappy that he was arriving in the area. The grievor directed inmate A to move down the range despite the heckling. Inmate A protested verbally. The grievor testified that at that point inmate A threatened to set his parents on fire. The grievor explained that both the inmate and the grievor are originally from Newfoundland. They often talk about this and about their families.

[35]   The group moved down the range, past the other officer’s post, halfway into the other section of the Segregation Unit, where Officer Hincks was holding open the door of the designated cell for the inmate. The grievor testified that at that point he was concerned that at the end of the line, like 75% of inmates in that situation, inmate A might resist going inside the cell. When the inmate was facing the cell, the grievor kicked him in the buttocks. The inmate entered the cell. The video evidence shows that the inmate did not twitch or turn or complain about the kick. He did not show any forward momentum from it either. Officer Hinks closed the cell door. The grievor then testified that he exited the area and returned to his assigned duties and the aborted escort of the other inmate to the administrative area. He added that it was important for him to honour the agreement he had made with that inmate.

[36]   Mr. Leblanc, the grievor’s supervisor, later asked him to escort inmate A to the health care centre. The grievor did not feel comfortable with this and told Mr. Leblanc that in his opinion it would be better if an officer not involved in the use-of-force incident escorted the inmate. Mr. Leblanc maintained the order and the grievor complied. He followed the prescribed procedures dictated in these circumstances, taking the video camera with him. The grievor testified that the inmate was polite and cooperative. Mr. Roberts worked the camera. When the nurse asked what had happened, inmate A said, directly into the camera, that the guards had beaten him and that he wanted to call the RCMP. The grievor saw the nurse apply to the inmate’s forehead a small bandage normally used when one cuts oneself shaving. He described it as a small, not a regular, “Bandaid”. The inmate was escorted back to his cell having been handcuffed all this time.

[37]   The grievor confirmed that he wrote and signed two reports that day, one at 11:30 a.m. and the other at 11:40 a.m. (Exhibit E–4). He wrote the second report to complete the sequence of events. He acknowledged that he did not mention the presence of blood in his reports. He did not report that the inmate was on the floor because he had his back to that area at the time and was standing at the officer’s post at the mid-range distance. He did not see what was happening in the corner, the shower area. He was speaking with Officer Lewis, who was inside the post. When the grievor looked down the range, all he could see was the back of three or four officers in the doorway to the shower area.

[38]   The grievor also talked about his relationship with inmate A. He described it as a comfortable one, where two people from Newfoundland have some affinities and talk about home. Officers know inmate A; they know his character and his ways. Reciprocally, inmate A also seemed comfortable with the grievor and with Officer Dillon, who is also from Newfoundland. The grievor acknowledged the fact that Inmate A is not considered to be a violent offender. He added that it was never his intention to hurt the inmate and that, as far as he knows, the inmate was not hurt.

[39]   Asked to comment on his behaviour, and more specifically on his kicking of the inmate, the grievor acknowledged that his reaction was very unprofessional and took full responsibility for this. He added that this behaviour was very much unlike him, stating: “I don’t know what came over me”. He explained that, at the time, his mind was focused on the threat to his parents and the tension around the whole situation, including the presence of blood. The knowledge and experience that in these situations inmates generally cause trouble just as they are entering their cell was also playing on his mind.

[40]   The grievor stated that he deeply regretted his reaction and that he has paid dearly for it. As to the reasons for not reporting the kicking incident, he acknowledged that he did not want management to find out about it because he knew it was wrong.

[41]   During cross-examination, the grievor stated that threats are made by inmates on a regular basis and that he normally takes them in stride. He also confirmed that he did not mention the incident until the video recordings were retrieved.

[42]   The grievor was also asked by his representative about the possibility of his returning to the environment and the implications for him, the inmates and his colleagues. He stated that this was the first and only time such a thing had ever happened during his nine years of service provincially and federally. The grievor went to counselling and psychological therapy over a period of five months following the event. He saw Dr. Eugene Leblanc, Ph.D., from October 28, 2004, to March 14, 2005 (Exhibit G–17). He needed to find out why he reacted in that manner. He has paid a heavy price with his family and financially. He is now confident that nothing like this will ever happen again. He is very aware that he disappointed everyone-his employer, his colleagues and his family.

[43]   Ron Cormier is a Correctional Supervisor at the CO-2 group and level. He has worked with the grievor since he started at Dorchester Institution, eight years earlier. Although not his immediate supervisor, Mr. Cormier had dealings with the grievor nearly daily. He described the grievor’s performance as being excellent (Exhibits G–10 to 14). The grievor is an officer who immediately does what he is told to do. He is also well viewed by other staff members. He gets along easily with everyone, staff and inmates; he is a likable person. The grievor functioned well in the institution and could talk easily with the inmates. He had a good connection with them and could sense when something was wrong. Mr. Cormier is of the opinion that the grievor would have no problem if reinstated. He would even be happy to take the grievor on his team. In his opinion, the grievor has not lost the respect of his colleagues or of the inmates.

[44]   Mr. Cormier was confident that the grievor would not repeat such behaviour. Although he did not see what happened, in his opinion it was totally out of character. The grievor is normally an easygoing and calm person both with colleagues and with the inmates.

[45]   The grievor further stated that he was ready to apologize to inmate A if he had the opportunity and to talk with him to ensure that there would be no problems in the future. That is something he was willing to do from the start. He had voiced this concern to his representatives and to the Warden. However, he was never given the opportunity to meet with the inmate. In his opinion he has not lost the respect of his colleagues or even of inmate A.

[46]   The grievor explained that he was willing to cooperate with the investigation but that, in light of the inmate’s complaint to the RCMP, he was advised by his lawyers and his representatives not to say anything in the course of a fact-finding or disciplinary investigation. A letter in this regard was sent to Warden Mills on January 25, 2005 (Exhibit G-18), by the representative of the grievor, and the other officers. The grievor maintained that at all times he indicated that his representative would speak on his behalf. Many unsuccessful attempts were made by his representative to meet with management and to discuss the situation.

The disciplinary measure

[47]   The then Deputy Warden at Dorchester Institution, Al Davidson, testified with regard to the decision to discipline the grievor. Warden Mills, who is the present warden, was not able to attend the hearing.

[48]   The factors considered in imposing the disciplinary measure include the fact that the grievor had been with the Service for eight years and that he had no known problems. His disciplinary record was unblemished. However, the incident was considered to be very serious. There were aggravating factors such as the fact that the grievor’s action was considered criminal behaviour and that it was unprovoked.

[49]   Mr. Davidson pointed out that correctional officers are the last line of protection for inmates. They are charged by policy, but more importantly by law, to look after their safety. The credibility of the institution in the eye of the public was at stake. Also considered was the fact that this particular inmate was in fact sent to the Segregation Unit for his own safety, not because of rebellious or otherwise difficult or dangerous behaviour. The fact that the assault took place when the inmate was no longer in restraint and was no longer considered a threat or even non-compliant was also considered. 

[50]   Maintaining the grievor in his position was sending the wrong message to the public, the inmates and the other officers. Retaining an officer who had assaulted an inmate could even be dangerous for the grievor or other officers; there could be reprisals.

[51]   Furthermore, the fact that the grievor did not cooperate with the investigators was taken into consideration. Also considered was the fact that he did not report his own actions, as well as certain events, such as the inmate’s fall to the floor, the presence of blood, the inappropriate strip–search procedure, death threats on the part of an officer and the fact that the grievor might have witnessed Officer Dillon also kicking the inmate.

[52]   Also considered were mitigating factors such as the fact that the grievor admitted to the kicking incident and that he apologized for it and appeared to be remorseful. In conclusion, it was determined that the kicking incident was in itself, under the circumstances, sufficient to warrant discharge. A suspension could have sent the message that the Correctional Service condoned such violence by its staff. Such an act is diametrically opposed to the Service’s mission and mandate.

Summary of the arguments

For the employer

[53]   In the employer’s view, the issue is whether or not the disciplinary measure imposed on the grievor was justified under the circumstances. As such, two questions need to be addressed: Was there any cause for discipline? And, if so, was the disciplinary action appropriate?

[54]   As such, I should be concerned with the determination of whether or not the employer acted reasonably. In the employer’s opinion, the arbitrator should not intervene in disciplinary matters unless the decision falls in the range of unreasonableness or unless the employer did not consider relevant elements.

[55]   As for the first element, it is not at issue. There was cause for disciplinary action. What is at issue is only the quantum of the penalty. In the employer’s opinion the disciplinary measure was reasonable and appropriate considering that the act committed by the grievor is, for a correctional officer and a peace officer, one of the most serious acts of misconduct possible.

[56]   The employer pointed out the purpose of the federal correctional system by referring to the Corrections and Conditional Release Act (1992, c. 20) at section 3:

Purpose

3. The purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by

(a) carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders; and

(b) assisting the rehabilitation of offenders and their reintegration into the community as law–abiding citizens through the provision of programs in penitentiaries and in the community.

[57]   The use of violence towards an inmate does not assist his rehabilitation and reintegration to society. It is certainly not a humane act. Section 4 of the Act lays down the principles that guide the Service in achieving the purpose referred to in section 3. Paragraphs (d), (e) and (j) read as follows:

. . .

4. that the Service use the least restrictive measures consistent with the protection of the public, staff members and offenders;

5. that offenders retain the rights and privileges of all members of society, except those rights and privileges that are necessarily removed or restricted as a consequence of the sentence;

…

10. that staff members be properly selected and trained, and be given

    (ii) good working conditions, including a workplace environment that is free of practices that undermine a person’s sense of personal dignity . . .

. . .

[58]   In the employer’s opinion, what happened to inmate A undermines the sense of personal dignity for himself, the correctional officers and the grievor. In its opinion, correctional officers should not have to work where an officer is allowed to act violently.

[59]   More importantly, it should be remembered that inmates are at the mercy of those who run the system at all times. Correctional officers are the last line of defence for inmates. They can have a great sense of power over inmates. This power, therefore, should be exercised responsibly and in accordance with the duties and obligations entrusted to each correctional officer.

[60]   In this regard, paragraph 5 (a) of the Act provides that:

5. There shall continue to be a correctional service in and for Canada, to be known as the Correctional Service of Canada, which shall be responsible for

   (a)   the care and custody of inmates;

. . .

[61]   Thanks to the technology of the cameras, we have the advantage of being able to see the grievor’s actions. What one can see is certainly inappropriate and unbecoming of a correctional officer and a peace officer. It is certainly not what is intended in the Corrections and Conditional Release Act. 

[62]   The employer is also concerned that there could be “a culture of kicking inmates” at Dorchester Institution. In support of this argument, the employer pointed out that inmate A apparently was kicked on two different occasions, by two different officers, during the course of the escort in question. If that is the case, then this practice has to be denounced and it has to be eradicated. The employer submitted that any mitigation of the penalty would not serve the purpose of sending a strong message as to the inappropriateness of these actions.

[63]   Only in the most special circumstances should a correctional officer retain his job in such a context. To respond otherwise would promote a climate that favours this kind of action. Correctional officer have powers that come with great responsibilities. The employer also suggested that the public might be very sensitive to the way that inmates are treated in federal penitentiaries.

[64]   As for the reasons for the grievor’s termination, the employer submitted that there is a clear rationale as to why the employer has lost confidence and trust in the grievor. Referring to the evidence provided by Mr. Davidson, the employer pointed out that the decision was made with very careful consideration and that no mitigating circumstances were found to outweigh the decision in favour of termination.

[65]   In the employer’s opinion, the act of kicking inmate A in the buttocks, a brutal, humiliating and degrading act, is sufficient misconduct to warrant termination of employment. However, the employer was also faced with aggravating factors. The grievor never admitted his misconduct, did not notify the employer of the event and failed to apologize until a recording was found. In his opinion, the grievor never showed any remorse until this hearing.

[66]   The employer speculated that, if it had not been for the existence of this recording, management probably would never have found out about this incident. The report from inmate A did not specifically identify the officer who kicked him. Furthermore, the grievor left a number of other elements out of his reports. They are important events, and some could be matters of misconduct and discipline involving the grievor and other officers.

[67]   Also considered as an aggravating factor was the lack of cooperation on the part of the grievor in the investigative and disciplinary processes. In the employer’s opinion, the grievor cannot hide behind his lawyer’s and representatives’ recommendations not to make a statement with regard to the events. All employees have a duty to cooperate in investigations conducted by the employer.

[68]   Finally, by the grievor’s own admission, the inmate was not recognized to be a violent offender. He was simply known to be difficult. Although the grievor may have been threatened by the inmate a few minutes before he kicked him in the buttocks this is not an excuse by any means, considering that such threats appear to be made regularly and the grievor acknowledged that officers usually ignore them.

[69]   With regard to the criteria for a decision to reinstate the grievor, the employer submitted that such a case does not exist in the present circumstances. The grievor’s eight years of service would not be considered long service. Although his performance was considered to be good, management placed no weight on this factor in their decision. The grievor showed no remorse and was not cooperative during the investigation. There is no mitigating factor which would outweigh the aggravating factors considered by the employer when making its decision.  Although it may be tempting to give the grievor a second chance, the balance is tipped in favor of these aggravating factors.

[70]   Furthermore, the issue of financial hardship should not be a consideration either. The grievor is young, well educated, and healthy and should be able to find suitable employment. In the employer’s opinion, this situation is a shame.  The employer lost a well–trained officer but, more importantly, the employer needs an officer that it can trust.

[71]   Relying on the Board’s decision in Aitchison v. Treasury Board (Solicitor General), PSSRB File No. 166–2–16042, (1986) (QL), the employer submitted that substituting a lengthy suspension in lieu of a penalty of discharge should be done only in very special circumstances. 

[72]   In Re Government of Province of British Columbia v. British Columbia Government Employees Union (Correctional Services Component), (1987) 27 L.A.C. (3d) 311, the Board concluded that dismissal is not an excessive response considering that:

. . .

Assaulting and threatening inmates is one of the most serious offences one can envisage on the part of a corrections officer.

. . .

[73]   There are at least two reasons for this:

. . .

Inmates are vulnerable to the integrity and proper conduct of corrections officers in at least two respects. Firstly, the very nature of the custodial functions permits a corrections officer to apply force to the person of inmates if circumstances require it, including the prevention of escapes, self–defence and the routine of using physical force to compel inmates to comply with necessary instructions in the event of resistance. In short, a corrections officer can apply physical force quite legally and and properly and therefore can account for injuries to inmates in a manner consistent with the proper discharge of their duties.

. . .

One can anticipate that where an allegation of assault comes down to the difference between the word of a corrections officer and the word of an inmate, the word of the corrections officer will carry greater weight for a number of self–evident reasons.

The very fact of that vulnerability raises in a corrections officer a significant duty of trust.

. . .

[74]   It is also the employer’s opinion, based on Gibbons v. Treasury Board (Solicitor General Canada – Correctional Service), PSSRB File No. 166–2–19622 (1990) (QL), that, to justify the grievor’s dismissal, the employer need not prove all of the allegations against him but only the most serious one.

[75]   The employer also submitted other cases, namely, Ontario Public Service Employees Union v. Ontario (Ministry of Public Safety and Security) (Horan Grievance), [2002] O.G.S.B.A. No. 58 (QL) and, from the Board, Simoneau v. Treasury Board (Solicitor General of Canada – Correctional Service), 2003 PSSRB 57.

[76]   In summary, the employer argued that the disciplinary measure imposed on the grievor was appropriate and reasonable and that I should not interfere with the employer’s decision. Aggravating factors, such as the grievor’s lack of cooperation in the investigation, outweigh any mitigating factors, one of which-the grievor’s belated remorse -is not credible.

[77]   The grievor’s actions were such that he has lost the employer’s trust and confidence. Correctional officers are the last line of defence for inmates. They are entrusted with important responsibilities towards inmates and the public. Such a brutal, humiliating and degrading act is unbecoming of a correctional officer and a peace officer. Reinstatement would send the wrong message to correctional officers, the inmates and the general public.

For the grievor

[78]   The grievor first addressed the issues arising from the investigation process and what he considered a failure to act fairly on the part of the employer. The correctional officers, he pointed out, have had concerns with the investigative processes at Dorchester Institution for a long time. It is alleged that the results of so–called fact–finding investigations end up in the disciplinary decision-making process, contrary to all rules of natural justice and fairness.

[79]   This is one of the reasons why the grievor resisted cooperating with the investigators. Although he recognized that the case does not turn on this and that I am not in authority to intervene in this matter, it is an important factor when looking at the aggravating circumstances considered by the employer, such as the lack of cooperation from the grievor in the investigation. It explains the reasons for the grievor’s apparent lack of cooperation. It should not have been held against him.

[80]   The grievor is also disturbed by the employer’s statement that he was not remorseful and that he made no attempt to apologize to the inmate. He pointed out that he was not allowed back on the employer’s premises as of his next shift day following the incident. He had no opportunity to see the inmate in order to apologize. Furthermore, he did tell the Warden at his first meeting with him that he had been wrong and that his actions were uncharacteristic. He assured him it would never happen again.

[81]   The grievor also offered full cooperation to Mr. Muise, subject to possible limitations due to the criminal investigation triggered by the inmate’s complaint to the RCMP. In fact, he offered cooperation on three separate occasions. The grievor had been advised very early on by the bargaining agent’s representatives, and later by his lawyers, that he should not speak about the events. This was put in writing through his bargaining agent’s representative (Exhibit G-18). This legitimate decision on the grievor’s part to follow legal advice cannot be construed as an attempt to conceal the truth or to be uncooperative. The employer presented no evidence as to intent or conspiracy to conceal.

[82]   From the very beginning of this hearing, the employer argued that the grievor’s kick to the inmate was enough to terminate his employment. However, the employer insisted in its presentation of the evidence and in its disciplinary letter (Exhibit E-1) to the grievor that other factors were considered, namely those enumerated in the letter detailing the results of investigation (Exhibit E-2).

[83]   It is suggested that the Warden believed everything found in the independent investigation report (Exhibit E–5) that related to the grievor. However, that report sheds light on events of even greater seriousness than the actions of the grievor. In the course of this hearing, the employer stipulated that there was no evidence of abuse of force in the shower area in the Segregation Unit. It also stipulated that there was no evidence of any death threats uttered by Officer Wry, as alleged in the report.

[84]   As a result, the grievor can no longer be found to have neglected to report on such events. The reasons for termination being given at this time are different from those given at the time the decision was made. Even Deputy Warden Davidson clearly explained that the assault on the inmate was the decisive factor in the decision process. The grievor argued that the employer should not be allowed to change the termination grounds so dramatically at the time of the adjudication process. Even the accusation of participating in a conspiracy to conceal the excessive use of force and the other events is no longer at issue. No evidence on this factor was brought forward and the employer stipulated that it was no longer relying on this aspect of the case.

[85]   The jurisprudence, long established with a decision by then arbitrator Laskin in Re United Automobile Workers, Local 112, and De Havilland Aircraft of Canada Ltd., (1964)15 L.A.C. 41 (QL), provides that just cause should be determined on the basis of the reasons for discharge which were acted upon when the discharge was made.  In this particular case, the factors that were either dropped or not proven are so important that the case as a whole, including the aggravating factors, should no longer stand. All that is left is the admission from the grievor that he kicked the inmate.

[86]   Alternatively, the fact that the grievor did not report events he would have witnessed is not a convincing aggravating factor in any case. First, the evidence has shown that the grievor was not in a position to witness the events surrounding the incident where the inmate was on the floor near the shower area. The grievor was halfway down the range, talking to the officers in the mid-range post. As for the allegedly non-conforming strip-search and threats on the part of the inmate, they were not, in the grievor’s opinion, so out of the ordinary that they should have been specially reported. Officers are continually verbally abused by inmates, according to the grievor and other witnesses.

[87]   Also, the grievor found that the conclusions of the fact–finding investigation regarding the degree of compliance of the inmate are not credible. There are many contradictions in the officers’ reports. The evidence showed that the inmate was still verbally non-compliant and was threatening to spray officers with blood while in the strip–search area. Blood is considered a weapon, given that it represents a health hazard to correctional officers.

[88]   Furthermore, by the time that the grievor wrote his reports, he had escorted the inmate to the health care center, where he witnessed the nurse apply a small bandage to a minor cut on the inmate’s forehead. The fact that the inmate had been cut on the forehead was no secret. He was sent for a medical examination, as is usual in such cases. The splatter of blood in the shower area was no secret either: the inmate responsible for cleaning blood was called in. He cleaned the area quickly and removed the soiled clothes.

[89]   The grievor admitted he did not report his own action, namely, the fact that he kicked the inmate. It was wrong. It is blameworthy. But it is all part of the same incident. An employer never disciplines an employee for an act and also for failure to report his or her own misconduct. This cannot be expected and cannot be considered separately. The grievor also pointed out that the case presented by the employer relied mostly on hearsay.

[90]   Finally, the grievor submitted that termination is not necessary to convey the message that assaulting an inmate is unacceptable. He agreed that correctional officers, as the last line of defence for inmates, are entrusted with a duty to protect them. However, every case should be examined on its own merits. This correctional officer acted without premeditation.

[91]   Furthermore, t here is evidence that this act was entirely uncharacteristic on the part of the grievor. He has had an unblemished record for eight years and is considered a good employee by superior officers. Correctional Supervisor Cormier testified that the grievor is well liked by other officers and by the inmates. He added that he was confident that the grievor would have no difficulty returning to his duties and that he would be willing to have him on his team. The grievor dealt with the incident by attending counselling immediately after the events.

[92]   The grievor suggested that another form of discipline could be imposed, giving him a second chance and at the same time sending a clear message that this kind of behaviour is not acceptable. The grievor relied on a decision by this Board in Burton v. Treasury Board (Solicitor General Canada – Correctional Service), 2004 PSSRB 74. The grievor also referred to Re Government of Province of British Columbia (supra), a similar case.

[93]   In summary, t he grievor argued that his actions were uncharacteristic and, as such, this should be viewed as an important mitigating factor. The grievor sought psychological counselling immediately after the events in order to understand his actions and ensure a situation like this would never be repeated.

[94]   His apparent lack of cooperation is understandable considering the criminal charges against him. It is also explained by the confusion with regard to two different processes on the part of the employer, the fact-finding investigations and the disciplinary procedures.

[95]   In the grievor’s opinion, he still commands respect from other officers and he is confident that he will have no problem regaining the inmates’ respect. Finally, it is argued that the grounds upon which the decision was made were altered at the time of adjudication. That is important in this case because it means that the aggravating factors considered then were no longer at issue at this stage or were simply not proven.

Reasons

[96]   What is at issue in this case is the quantum of the disciplinary measure imposed on the grievor on February 18, 2004. The exercise of discretion by adjudicators to modify a penalty has been recognised by the case law. It must be assessed and applied to the circumstances of each unique case, given the evidence. The task consists of an examination and assessment of the grounds for the disciplinary measure and any mitigating and aggravating factors.

[97]   The main ground for dismissal, according to the employer, was the kicking incident. This alone, in its view, warranted dismissal. The grievor was also found to be at fault for his participation in an improper strip search and for failure to report on the presence of blood as well as on the incident in the shower area where the inmate was on the ground.

[98]   There was no evidence presented as to the excessive use of force by other officers that the grievor would have witnessed and failed to report, nor of verbal threats on the part of a particular officer towards the inmate. The allegation of conspiracy to conceal the events was dropped and no evidence was adduced. The employer stipulated that these elements were no longer part of its case. As such, the disciplinary measure should be assessed as if these elements had been absent at the time that the employer made its decision.

[99]   As regards the alleged misconducts for which evidence was adduced, other than the kicking incident, the case is very slim. The evidence does not support the case for the grievor’s involvement in an improper strip search. The uncontested evidence was that the inmate was in fact uncooperative, in refusing to wipe off blood from his face and in threatening officers. In my view, there was no violation of the directives or so minor a violation that it would warrant no more then a reprimand for having failed to report this issue.

[100]   Such a reprimand would also be the appropriate sanction for failure to report on the presence of blood, considering the circumstances of the present case. The grievor would have become aware of the presence of blood as soon as he entered the strip-search area and heard Officer Wry instruct the inmate to wipe the blood smears off his face.

[101]   Finally, the evidence has also revealed that the grievor, in all probability, was not in a position at the time to actually see the inmate on the floor in the shower area. This would explain the fact that he did not report on this event. Any disciplinary measure at all related to this issue would therefore be unwarranted.

[102]   The employer then argued that the incident of the kick alone warranted the grievor’s termination. Furthermore, in its opinion, as long as the evidence has been established and the most important act of misconduct has been proven, the employer’s case is made. Again, the circumstances have to be examined and aggravating and mitigating factors have to be considered before I can allow a variation of the penalty.

[103]   Aggravating factors included the fact that the kick was unprovoked, that it was a criminal act unbecoming a correctional and a peace officer, that the grievor failed to admit and report it, that he failed to cooperate in the fact-finding investigation of the whole incident, that he failed to apologise and showed no remorse.

[104]   The employer also put into the equation the role and mission of correctional officers, the vulnerability of inmates, as well as the public image of the Correctional Service and the wrong message that a light penalty could send to inmates, the public and correctional officers. The employer felt it needed to take a strong stand against such behaviour.

[105]   The grievor admitted he kicked inmate A in the buttocks as he entered the cell in the Segregation Unit. This kick can be plainly seen on the video evidence. The grievor delivered the kick without him or the inmate losing their balance. The inmate did not turn around and was not thrown forward into the cell as a consequence. The grievor testified that he delivered the kick on the spur of the moment and without intention to hurt the inmate. He stated that no one would have wanted to hurt inmate A.

[106]   I can give credence to this part of the grievor’s testimony. The inmate was a big man. According to all witnesses, he was also unstable on his feet and had difficulty keeping his balance. If the kick had been strong and intended to hurt, he easily could have lost his balance. He did not. The subsequent visit to the health unit confirmed that he was not hurt. There is no evidence that he ever complained about pain.

[107]   Unlike the circumstances found in Horan (supra), the grievor did not enter the cell or apply abusive force from a dominant position standing above the inmate. The actual actions of the grievor, although defined as an assault, have to be viewed for what they were. The employer probably captured it best when referring to the humiliating and degrading nature of the gesture.

[108]   If such behaviour has become prevalent at Dorchester Institution, as suggested by the employer’s representative in his arguments, there was no evidence to that effect and he presented no evidence in this regard. If the employer suspects such a practice exists, it should investigate and officers should be put on notice that such behaviour is inappropriate, unacceptable and subject to disciplinary measures. If such a practice exists, and the employer is aware of the practice, it cannot suddenly discharge the grievor in order to denounce the practice and send the message to eradicate it unless the employees were first put on notice of the fact that the institution was aware of the practice and that any officer caught in the act would be severely disciplined.

[109]   With regard to the lack of cooperation with the employer’s fact-finding investigation, although the criminal charges made it more difficult for the grievor to cooperate, and although he offered to meet and answer questions through his representative from the beginning, as appears from a letter from M. Mancini dated November 4, 2004 (Exhibit G-2), he did not in fact cooperate. The employer was right to see this as lack of cooperation in the fact finding investigation and to consider this to be an aggravating factor. The employer was right when it argued that the grievor could not hide behind his lawyer’s or representative’s recommendation not to make any statements with regards to the events.

[110]   Although the grievor acknowledged that he did not report this behaviour, he did not attempt to deny or excuse it once he found out about the existence of the recording. He admitted that the gesture was wrong. I should point out that as to the grievor’s failure to admit and report on his misconduct, in my view, this cannot be considered a separate factor. It is all part and parcel of the same misconduct.

[111]   Furthermore, t he grievor offered an apology to the Warden when the first occasion arose, demonstrating that he was remorseful at the time. He further asked to have an opportunity to apologize to the inmate.

[112]   I do believe that the grievor is remorseful. His manner and the delivery of his testimony were credible. Furthermore, to his credit, he immediately sought the help of a qualified clinical psychologist and neuropsychologist and worked with him for approximately four months in order to understand his action and reaction and to reassure himself that he would remain in control in the future.

[113]   The grievor has suffered the consequences of his action. He had been working in correctional services for nine years at the time of the events. His disciplinary record was unblemished. His performance reviews all show that he was meeting or surpassing all of the objectives. The employer admitted that the grievor was a very good and well-trained officer. More importantly, some witnesses were positive that the grievor had not lost respect from his colleagues and could probably regain the respect of the inmates. The grievor was well appreciated by all, inmates included.

[114]   I have carefully listened to the grievor’s testimony and that of his supporters. I am convinced of his sincerity. I do believe that the grievor has learned a hard lesson. Although I do not condone his actions, which reflect very poorly on the Correctional Service, I do believe that this was an uncharacteristic act on the part of the grievor. I trust that he will not commit a similar mistake ever again.

[115]   The jurisprudence, as summarized in Re Government of Province of British Columbia (supra), has established that it is clear that:

. . .

. . . where a corrections officer is found to have applied excessive force to an inmate, while that conduct will be seen as deserving of discipline, it will not necessarily justify dismissal.  (…) Factors of mitigation can include …an isolated and uncharacteristic outburst of temper, or any other fact pattern that explains the departure in terms that permit a finding that the conduct will not be repeated and that it was an aberration rather than a deliberate breach of duty.

. . .

[116]   A strong penalty will have the effect of sending the message that such behavior is not acceptable. The employer’s concern is legitimate. This was a case of serious misconduct. My decision should not be interpreted as condoning any such behavior. However, considering that it was not premeditated, considering that the grievor did not intend to hurt and in fact did not hurt the inmate, considering that the grievor’s actions were not malicious and in fact were uncharacteristic and that he immediately sought help in this regard, considering that he had been an exemplary officer until that time and that he took full responsibility for his actions, considering that several aggravating factors relied upon by the employer at the time of the decision no longer exist and that the remaining, proven factors do not outweigh these mitigating factors, the penalty will be modified.

[117]   For all of the above reasons, I make the following order:

Order

[118]   The grievance is allowed in part. The penalty of discharge is rescinded and a lengthy suspension equivalent to one year is substituted. The grievor is to be reinstated as of February 19, 2006, without compensation.

February 22, 2006.

Sylvie Matteau,
adjudicator