FPSLREB Decisions

I. Individual grievance referred to adjudication

1  This is a decision about whether the Correctional Service of Canada (“the respondent”) had just cause to suspend Michelle Bridgen (“the grievor”), from her employment for 20 days because she violated policies related to management of security incidents, health services including medical emergencies, medical emergencies and suicide/self-injury prevention, and because these violations contributed to the suicide of an inmate. As well, if there was just cause for some discipline, was the 20-day suspension just and equitable in the circumstances?

2 The openings and evidence in this grievance were heard in Kingston, Ontario, on November 29, 2011 and May 7 to 10, 2012. Argument was then heard, by consent, via video conference with the parties in Kingston and I was in Vancouver. The video proceedings were conducted under the following general guidelines (they apply to a full hearing; only the general parts of these guidelines and those related to argument applied in this case),

II. Positions of the parties

3 The respondent submits that the grievor violated policies on management of security incidents, health services, medical emergencies, suicide prevention and self-injury when she directed staff not to enter the cell of a 19-year-old inmate who had a ligature around her neck, Ms. Ashley Smith. The inmate had attempted many times to commit suicide by means of such a ligature. The specific direction given by the grievor, according to the respondent, was not to enter the cell of this inmate if she was still breathing. The respondent presented three witnesses who testified that the grievor stopped them from entering the inmate's cell when they had decided it was necessary to do so. On October 19, 2007 the inmate committed suicide.

4 The respondent submits that the grievor had an important role to protect the inmate from her self-injurious behaviour and she knew or ought to have known that her misdirection to staff increased risk of death. Other correctional officers determined the situations involving the inmate were medical emergencies and they should not have been stopped by the grievor from entering the inmate's cell. According to the respondent, the 20-day suspension imposed on the grievor was an appropriate penalty in the circumstances and it seeks the dismissal of the grievance.

5 In her submissions, the grievor relies on the fact that she was not at work on the day the inmate died and she had also started a new position before the date of death that removed her from operational responsibility for correctional officers. The grievor also challenges the evidence of the respondent's witnesses about the grievor's actions on a number of grounds. It is submitted that, for example, in one case the grievor did stop officers from going in the cell of the inmate to remove a ligature but it was done because the inmate was aggressive. In other cases the respondent's witnesses are incorrect, according to the grievor. As well, the grievor submits that the evidence of the respondent's witnesses should be dismissed outright for a number of reasons. For example, the respondent did not call any witnesses who were at work on the date of the death of the inmate. As well, an adverse inference should be taken against the respondent because it did not submit in evidence any of the reports or videos of the incidents involving the grievor.

6 The grievor also submits that there were a number of serious errors in the respondent's investigation and disciplinary processes. Further, some employees of the respondent who had equivalent or more responsibility for the death of the inmate received less discipline than the grievor or no discipline. The grievor emphasizes the extremely difficult nature of the inmate including her numerous attempts to commit suicide and her numerous attempts to harm staff. She submits that she has suffered a significant loss of promotion opportunities because of her suspension. This has caused embarrassment among her peers as well as a significant loss of income. The grievor seeks removal of the 20-day suspension and monetary damages to compensate her for the loss of opportunities for promotion.

7 It is agreed that this decision will consider whether the respondent had grounds for discipline. The issue of remedy will be heard and decided in the event the grievance is successful on its merits.

III. Summary of the evidence

A. General background

8 The proceedings of the Public Service Labour Relations Board (the "Board) are consistent with the open court principle, as described in its document "Policy on Openness and Privacy". Part of that policy is that, in exceptional circumstances, it is appropriate to limit the concept of openness for the protection of the privacy of individuals, including those who are parties or witnesses. In this case, as will be seen, the evidence includes very sensitive facts involving employees other than the grievor who were disciplined, or not disciplined, following the death of Ms. Smith.  However, none of those individuals appeared before me.  Nor are any legal issues related to decisions to discipline or not discipline those employees before me. On this basis, I agree with the parties that privacy protections are appropriate in the cases of these individuals. 

9 Therefore, throughout this decision, I have anonymized the names of individuals who were not directly involved in this adjudication. In some cases where individuals are referred to frequently, I have used "AA", "BB", "CC" or "MM" and "NN"  and so on. For individuals who are referred to infrequently, I use "[name of person]." 

10 The respondent operates correctional services across Canada. The events giving rise to this grievance took place at Grand Valley Institution ("GVI") in Kitchener, Ontario, and they relate to the management of an inmate in the secure unit at GVI in October 2007. The inmate committed suicide on October 19, 2007.

11 GVI is a women’s facility that houses about 80 inmates in minimum, medium and maximum security. Management of GVI includes a warden and a deputy warden who work day shifts, Monday to Friday (there was an acting warden during the period of time relevant to this grievance). Prior to the suicide of the inmate in October 2007 there were also correctional managers who reported to the deputy warden and who worked different shift times. In September 2007, as a result of a reorganization, the position of correctional manager was replaced with the position of correctional supervisor, with altered duties and responsibilities. Another part of the reorganization was that a position of Manager Intensive Intervention Strategies (MIIS) was introduced to GVI. As will be seen, the grievor held that position at the time of the events that gave rise to the grievance in this case. Before the reorganization the grievor held the position of team leader. Staff at GVI also included (and includes) correctional officers, psychologists and others. Officers working directly with inmates in and around the cells are also called primary workers.

12 The maximum security part of GVI, where the events in this grievance took place, is called a secure unit. Within that unit is a segregation unit where inmates can be kept under constant watch because they are, for example, at risk of harming themselves. Some inmates require continuous observation for 24 hours a day. The segregation unit has four cells, each with a door, a stainless-steel toilet (with a short privacy screen) and a camera. Outside the cells in the segregation unit is a range or walkway where staff move about in the course of their duties. These include delivering meals, arranging medical visits as well as observing inside the cells. Observation inside the cells by staff is done by looking from the range through a window or meal slot in the door. The camera inside the cell is also available for surveillance, but it has to be manually turned on. A short distance away, and through a locked door, is a control post or “bubble” where the video screens for the cameras in the cells are located. Each cell in the segregation unit has a secure window to the outside, on the wall opposite the door, and staff can go outside to observe inmates in their cells through this window. There are still some blind spots within the cells, such as under the bed or toilet, or if staff are looking through the door window, under the door.

13 The segregation unit is staffed at all times and staff work different shifts. There was a correctional manager and then, after September 2007, a correctional supervisor, who works essentially a day shift, Monday to Friday. During the day shift there can be about five staff in the secure unit with two of those working on the range in the segregation unit. During the night there are about three staff in total. Staff can be called in from other units within GVI for tasks, such as entering a cell with force to subdue an inmate.

14 The grievor has worked in the correctional service for the respondent since 1984. She has held a variety of positions with increasing levels of responsibility and, as she testified, an expectation of eventually being promoted to senior levels of management. In February 2007, she applied for and was selected to be placed in a pool of candidates from which she could be promoted to the executive levels of the correctional service. The same year, she was asked if she would consider working at GVI, she agreed and she commenced work there in June 2007 as a team leader in the secure unit. She was responsible for all staff in that unit and she reported to the deputy warden.

15 In September 2007, there was a reorganization of the correctional service and the grievor was moved into the position of MIIS. She testified this was a “huge change in my authority” because it took away the operational responsibilities she had as team leader. She reported to the deputy warden but she did not supervise any staff; the correctional supervisor took over that role and was, organizationally, equal to her (as opposed to the previous arrangement when the correctional manager had some reporting responsibility to the grievor, the team leader). As an example of how she was removed from the operational side of things, the grievor testified that one afternoon she learned for the first time that staff had entered an inmate's cell five times that morning to remove ligatures from her neck. This was the same inmate who eventually committed suicide, Ashley Smith.

16 I reproduce excerpts of the job description for the position of MIIS, the position held by the grievor at the time of the suicide of Ms. Smith:

…

Manager, Intensive Intervention Strategy

Effective Date – Date d’entrée en vigeur

2007-09-04

…

Client Service Results – Résultats axés sur le service à la clientèle

The implementation and management of the National Intensive Intervention Strategy in a federal women offenders institution, which involves the provision of treatment options for women that present significant cognitive limitations, mental health or behaviour concerns.

The Intensive Intervention Strategy (IIS) addresses the needs of women offenders who require intensive interventions at all security levels. The IIS provides safe and secure accommodation for women while providing intensive staff intervention, programming and treatment and opportunities. The IIS is made up of two separate components, i.e., the Structured Living Environment (SLE) and Secure Unit (SU).

Key Activities – Activités principales

Administers the National Intensive Intervention Strategy (and framework) for the provision of treatment for women with mental health issues, cognitive limitations, behavioural problems and for high risk, high needs women classified at all security levels in a federal women offender institution.

…

Manages the provision of treatment modalities within a Structured Living Environment (SLE) for minimum and medium security women offenders and within a Secure Unit (SU) for maximum-security women offenders presenting mental health issues, cognitive limitations, behavioural problems and for high risk, high needs women. In addition, manages supervision and interventions of offenders under disciplinary and/or administrative segregation within the institution.

Plans and directs interdisciplinary teams, typically comprised of psychologists, nurses, parole officers, behavioural interventionist, primary workers and other staff as appropriate, focused on the provision of treatment, services, and reintegration tailored to individual offender’s needs, and intervenes directly in difficult cases as necessary.

Monitors the various components of the program activities being delivered to ensure adherence to the departmental principles and policies and institutional standards governing the development and delivery of mental health programs and services for women, identifies issues and takes corrective action.

…

Skills - Habiletés

…

The work requires knowledge of the roles and relationships of partner organizations and mental health multi-disciplinary teams … in order to coordinate program services and treatment and share information.

…

The work requires knowledge of the principles of mental health care and assessment, crisis intervention, counseling, health care, as well as all programs and services in support of the mental well being of women offenders in keeping the principles governing the delivery of mental health services for women offenders, i.e., a holistic program delivery.

The work requires knowledge and skills in general management and administrative principles and practices in order to supervise the work and monitor the resources assigned to the Unit while promoting and supporting respectful relations and interactions.

…

The work requires communication skills to provide advice, guidance and training to management and staff, and to maintain contact with members of the mental health teams.

Efforts – Efforts

Effort is required to plan and direct the activities of the Intensive Intervention Strategy’s mental health interdisciplinary teams involved in the delivery of a coordinated continuum of care that addresses the varied mental health needs and behavioural disorders of women offenders in order to maximize well-being and to promote effective reintegration, within an appropriately restrictive environment to ensure public safety.

Effort is required to direct the Intensive Intervention Strategy philosophy and to integrate all related activities, including assessment, therapeutic intervention, crisis intervention and the delivery of health care and security services, where creativity in problem-solving is often required to develop strategies to address individual case needs across all disciplines.

…

Responsibilities – Responsabilités

Supervises approximately nine to fourteen (9 – 14) employees within a women offenders institution.

Consults with the clinical supervisor i.e. Psychology and Health Care with respect to the provision of treatments and services to women offenders.

Provides functional supervision to approximately five to ten (5 – 10) employees (e.g. Nursing and Psychology).

…

Provides advice and training to institutional staff and management on mental health and behavioural intervention strategies and related matters.

All employees of CSC are required to immediately report to security personnel, any information about or observations of offender conduct that could jeopardize anyone’s safety or the security of the facility.

…

[Sic throughout]

17 Ms. Smith was 19 years old when she came to GVI from another institution in June 2007. She had originally been incarcerated on minor charges but her conduct while an inmate had resulted in further charges and convictions, increasing her time in the prison system considerably. By all accounts, Ms. Smith was an extremely difficult inmate to manage. She apparently had been sent to GVI in order to give the staff at another institution a break from managing her. She was in GVI until her death on October 19, 2007 in the secure unit at GVI, except for a short period at another institution.

18  For a few days of her time at GVI, perhaps a week, Ms. Smith was kept in one of the pods in the regular part of the segregation unit, not in the secure unit. However, there were problems when she did things like smashing a television, assaulting staff and there were also concerns about her self-injurious behaviour. The rest of her time at GVI was in a cell in the secure unit. Her cell had a steel toilet and bed with a security mattress, meaning it was very difficult to take apart. Her clothes were limited to a “safety” gown which is a square garment made of material that is designed to be difficult to tear. She was considered a suicide risk most of her time at GVI and much of that time she was rated as a high or very high risk for suicide.

19 The primary difficulty with managing Ms. Smith was her practice of putting ligatures around her neck. The evidence suggests that it was a mystery in September to October 2007 where she got the material for these ligatures and it remains a mystery. One witness, the grievor, thought the main source was a bed sheet Ms. Smith was able to grab from a laundry station outside her cell door when the door was left open. She tore the sheet in half and returned one half to staff. The other half, however, was never found despite numerous searches of Ms. Smith’s cell and her person. The evidence is that body cavity searches of inmates are not permitted. In any event a source of fabric was apparently available to Ms. Smith because on numerous occasions she fashioned a ligature and put it around her neck. One witness thought that she had somehow been able to keep hidden pieces of glass from broken television sets and Ms. Smith used this glass to cut the half of the missing sheet into strips for ligatures. It is not directly relevant to the issues in this adjudication, but no one could explain with any confidence how she was able to gain access to material to fashion ligatures.

20 On some occasions, Ms. Smith would tie the ligature very loosely with the knot on her chest. This would be observed by staff and it would start a conversation, often including protracted negotiations, as staff attempted to convince Ms. Smith to undo the ligature and give it to the staff. Under the policies of the respondent the ligature was considered contraband. The conversation would sometimes include Ms. Smith saying things like “I just need to feel it around my neck, it makes me comfortable.” On other occasions, she would have the knot at her throat and this would create more concern among staff and more serious negotiations for the removal of the ligature. In a third situation, Ms. Smith would place the ligature around her neck very tightly, causing herself to gasp, her face to turn blue and other symptoms of suffocation. On these occasions there was an urgent need for staff to get the ligature off and away from Ms. Smith. Sometimes negotiations were successful and she removed the ligature and gave it to staff. On other occasions she did not remove the ligature and her condition became critical enough for staff to enter her cell and remove it.

21 In terms of the policies of the respondent (discussed below), entering the cell of Ms. Smith was considered to be a “medical emergency” requiring the “use of force”. This intervention was done by three or four staff and it could be initiated by any primary worker. The staff would gather on the range outside Ms. Smith’s cell and quickly assign tasks. For example, one person would take Ms. Smith’s arm or arms, another her leg or legs, another would operate a video camera and another would cut the ligature off using a “911 knife”. The latter is available to staff for these kinds of situations. During this procedure, Ms. Smith would often be verbally abusive, she would vigorously resist the staff and be assaultive and, sometimes, she would charge the staff as they entered the cell. Once the ligature was removed, the staff would do a quick search of the cell and of Ms. Smith, including confirming that she was breathing normally. The staff would then leave the cell and make arrangements for a nurse to attend Ms. Smith. The respondent’s policy is also that a report is to be prepared.

22 The evidence is that staff had to enter Ms. Smith’s cell and use force to remove the ligature around her neck frequently. One morning it happened five times. There could also be short periods when Ms. Smith was relatively calm and cooperative, even joking, and she either did not place ligatures around her neck at all or staff were able to negotiate the removal of ligatures without entering the cell and using force.

23 Over time the condition of Ms. Smith worsened. For example, she had started as a regular inmate in the segregation unit and then she was moved to the secure unit. Then, on October 9, 2007, a psychologist reported that Ms. Smith was no longer using the ligatures for "… the tingling sensation it gave her. Now, … she seems to be using the ligatures to kill herself."

24 There was concern within management of the respondent about the use of force by staff in the case of Ms. Smith. For example, "AA", from the regional headquarters of the respondent, conducted a training session for staff before the death of Ms. Smith in which he questioned whether staff were entering Ms. Smith's cell too often and using excessive force, contrary to policy. The grievor thought that AA was at GVI about October 9 or 10, 2007. Heather Magee, a correctional officer and witness for the respondent, testified in cross-examination that she remembered this training session. She remembered AA saying that the staff were, in Ms. Magee's words, "bordering on excessive force because they were going in [to Ms. Smith's cell] too soon, too many times." Ms. Magee thought this was "contradictory" to the primary workers because "it was not numbers … it was [based on] incidents." She was also asked in cross-examination whether AA had said anything about not going into the cell if Ms. Smith was breathing. Ms. Magee replied, "in my head he did say something like that, but at this point I can't be sure."

25 Another witness for the respondent, Angelique Fancey (since October 2007 the last name of Ms. Fancey has changed; since the documents refer to her previous name I will also use it) also recalled the training session and she remembered AA saying that staff were using "too much force" and they "needed to be careful because they were taking too many risks." Another correctional officer was interviewed during the respondent's investigation of the role of management at GVI and, according to the investigation report, she described AA saying that force had been used more "… than Millhaven [a maximum security men's institution] in a month." Ms. Fancey recalled the staff at the training session being "very frustrated with what we were being told" and someone said to AA that "he needed to see for himself what is going on", in Ms. Fancey's words

26  There are also two emails dated October 10, 2007 from the acting warden at GVI to "correctional managers." They are copied to the grievor, among others. The first is dated October 10, 2007 as follows:

…

Subject :       Use of Force and Medical Assessment

Correctional Managers,

Today, the Use of Force reviews revealed your many attempts to ensure a compliant Nurses Assessment is attempted following all uses of force. Please note that you can also use the option of opening the cell approximately 6 inches (pinning with the newly installed bar hole) and placing a shield in front of the opening. This would permit the nurse to get a complete viewing of the inmate. The required compliment of three Primary Workers at a minimum to manage the risk. In the event the risk is deemed unmanageable, the nurse and the CM [correctional manager] are to indicate such on tape.

The only time that such a measure would be deemed inappropriate was if Ashley had a weapon that could be thrown/used over the shield.

Eric placed the six feet high shields in the secure unit sub control last Friday further assisting with this strategy.

The application of this procedure will reduce the amount of time that the video camera is required to run and allow for the closure of the Use of Force file.

Thank you.

[Sic throughout]

27 The second email is also dated October 10, 2007, to correctional managers and copied to the grievor:

…

Subject :       RE : … Correctional Manager Meeting to be scheduled

Correctional Managers,

Today we reviewed a number of the use of force tapes from the past few weeks. We will review a few of the tapes at our next meeting. In keeping with the past, you are welcome to view the tapes in the back office of [name deleted] office when you have time. Until such time, I am providing you with the following information as it relates to the number of non compliance issues in relation to the Situation Management Model (excessive use of force).

A view of the videos depict situations whereby your staff are following the management plan and open Ashley’s cell door six inches to view Ashley and determine that she is safe and breathing. What appears to be happening is that your staff are not withdrawing and reassessing as Ashley starts to talk and/or get up. You need to assist/brief/communicate with your staff and ensure they are aware of this comply with the situation management model and be alerted to this serious non compliance issue.

Also please note that your post briefings and nurse assessment briefings should be in front of her cell (as the video recording is required to remain on until such time as the nurses assessment is completed). Moving away from video recording the incident is non compliance with the Commissioners Directive on Use of Force. Do not worry if she can hear you, she knows what she has done and why she is being assessed by the nurse.

There is another video recording wherein there are 5 female Primary Workers present. A male Primary Worker is on camera. The male PW [primary worker] gives the camera to a female PW and takes control of the situation. This is in direct contradiction of the Commissioners Directive on the Cross Gender Protocol. There are videos of female PW’s being present, but the male PW’s are using the force and the female PW being on camera. You will need to further brief/discuss one on one the PW’s assigned to the unit on this matter as it relates to the Cross Gender Protocol.

The PW’s also appear to have fallen back in terms of reinforcing negative behaviour. After the use of force various PW’s can be seen interacting/chatting/talking to Ashley and not removing warmth.

Almost all interventions include various PW’s talking during the use of force. Although one appears to have taken the lead role, they are all giving direction and or pleading with Ashley.

[name deleted] has been assigned as the Correctional Manager for the Secure Unit this weekend to further assist/educate and ensure compliance in this serious and sensitive issue.

I trust that you all posed many questions of Ken Allen these past two days. After ops today, I raised an issue surrounding an ongoing concern expressed by your group as it relates to your signing of your Primary Workers OSOR’s following a Use of Force. Please note that in the event you are required to depart due to time constraints (over 16 hours on shift or being relieved), you are required to complete an OSOR indicating that you have been relieved and that the relieving CM will sign off/review the OSOR’s for the Use of Force file.

[Sic throughout]

28 The acting warden of GVI also sent the following memorandum to the regional headquarters of the respondent on October 11, 2007:

September 22 and 23, 2007 – Excessive and Inappropriate Use of Force

During the use of force reviews for incidents occurring on September 22 and 23, 2007, inmate Smith continued to toe ligatures around her neck requiring staff to intervene to remove the ligatures and preserve life.

During these incidents excessive and inappropriate use of force were identified. In particular, three officers entered inmate Smith’s cell, one male officer physically restrained the inmate by placing his knee on her abdomen, trapping the inmate’s left arm between his legs as he cut the ligature from her neck using a 911 rescue tool.

In another incident, this same male officer, relinquished his duty as camera operator by passing the camera to a female officer, entering the cell to assist the female officers and physically restrained the inmate. During this incident, there were five female officers, two of which were IERT members and there was no requirement for the male officer to intervene.

There are incidents where the use of force was not necessary as the inmate was observed breathing and talking, however, the staff entered the cell to remove the ligature. The staff should have withdrawn and re-assessed the situation prior to the use of force being utilized.

Given the seriousness of these incidents and the fact that the same staff members were involved and violation of policy, the deputy warden will be conducting disciplinary hearings. In addition, one IERT member will be interviewed and possibly removed from the IERT.

[Sic throughout]

29 Early the morning of October 19, 2007 Ms. Smith was under constant observation in her cell because she was considered a very high suicide risk. According to a subsequent investigation report (discussed below) and the evidence in this adjudication, she was having difficulties with her family and a recent court date had extended her time in custody.  The result was that she had to be at GVI over Christmas. The grievor was not working that day because she was in Ottawa attending training related to her new position as a MIIS. There had been a previous statement by Ms. Smith that she would kill herself on the shift of a manager she disliked. That person was on shift on October 19, 2007.

30 The staff noticed that Ms. Smith had a ligature around her neck. She was kneeling, then lying on the floor and not responding to staff. The officer in charge (not the grievor) was advised and that person directed a patrol team to respond to the secure unit. According to the subsequent investigation report, staff were directed not to enter the cell if Ms. Smith was breathing; that is, they were not to go in if they determined she had stopped breathing. A video camera was turned on to monitor Ms. Smith, her face was purple, she appeared to be gasping for air and she was not responding verbally to staff. The staff entered the cell and removed the ligature. She was reported as not breathing and CPR was performed. Ms. Smith was removed to hospital, where she was pronounced dead.

B. Evidence related to the discipline

31 The respondent called three witnesses to testify about the conduct of the grievor and their evidence is relied on to justify the discipline in this case, the 20-day suspension. I will discuss their evidence in this adjudication here as well as the grievor's evidence as it relates to the accounts of the three witnesses of the respondent. They, and the grievor, were interviewed during a subsequent investigation and notes of those interviews are also set out below. Finally, the grievor prepared a statement dated March 12, 2008, and this is also discussed below.

32 Nancy Dickson was a correctional officer at GVI in the fall of 2007, working in admissions and discharge, a two or three minute walk from the segregation unit. She also worked in segregation helping with the day-to-day routine of inmates there, including showers, meals and exercise. She knew the grievor as someone who worked at GVI, but not socially. Ms. Dickson explained the training she had received in suicide prevention at the beginning of her career as well as her training in first aid. She was not at work on October 19, 2007, the day Ms. Smith died.

33 Ms. Dickson testified that there were a number of occasions when she was called to segregation to manage Ms. Smith, "typically because she had a ligature around her neck." She would have difficulty breathing, her face would be "bluish grey", her eyes would be suffering from petechiae (burst blood vessels, observable through the skin) and her lips would have lost their colour. Ms. Dickson said this "seemed to happen fairly often, maybe a few times a week" and she was part of the team that entered Ms. Smith's cell to remove ligatures. The process was that someone like her would be called to assist the correctional officers in the secure unit and there would be a quick discussion about who was going to do what (who takes the arms, who takes the legs, who cuts the ligature and who operates the video camera); "everyone had a job."

34 When they entered the cell, Ms. Smith would usually be crouched down, then she would flail her arms around or hold them close to her body. She would assault the staff, including bite them, and she used profanity against the staff. The staff would subdue and restrain her, (sometimes using restraining equipment), the ligature would be removed, she would be "given a quick pat-down" to make sure there was no other contraband and then the staff would exit the cell.

35 Ms. Dickson testified about her work with the grievor. As Ms. Dickson put it, "one day" Ms. Smith was having trouble breathing because of a ligature around her neck and she (Ms. Dickson) was called from admissions and discharge to be part of the team to go in Ms. Smith's cell to remove it. When she arrived, Ms. Dickson noticed that Ms. Smith had difficulty breathing, she had a "bluish-grey tinge" to her face and her eyes were protruding. The grievor was there and, when the team was ready to go into the cell, the grievor put her arm out and told them that Ms. Smith was breathing and not to go in. Ms. Dickson testified that she felt frustrated and she "said something completely inappropriate to" the grievor; "When you see someone struggling, see that they can't breathe, but told not to go in, it is very difficult to live with that." Ms. Dickson left the secure unit to return to admissions and discharge. Very shortly after she left the secure unit - a matter of perhaps 30 seconds - Ms. Dickson received a call on her radio to come back. She did so, she and others entered Ms. Smith's cell and they successfully removed the ligature. The grievor was not there when Ms. Dickson returned.

36 In cross-examination Ms. Dickson agreed she had not referred to a specific date for this incident and she did not give a date when she was interviewed by investigators after the death of Ms. Smith. Ms. Dickson was asked if it might have been in June 2007 and she replied she did not recall, but it "may have been in June." She was also presented with the grievor's account of the incident. It was put to Ms. Dickson that the only time the grievor saw Ms. Smith blue in the face, Ms. Dickson was not there. As well, the grievor stopped Ms. Dickson from entering Ms. Smith's cell because Ms. Smith was swinging her arms around and there was a risk of assault. To this Ms. Dickson replied that was not how she recalled it. She was asked again whether she disagreed with that account and she said, "Yes, respectfully." She was also asked about any report she had filed about this incident and Ms. Smith and she could not explain why there was no report.

37 Ms. Dickson also agreed that Ms. Lepage and Ms. Lajoie did not provide her with the grievor's account of what happened as part of their investigation. And Ms. Dickson agreed that she believed that the respondent was putting unfair blame on the front line staff for what happened with Ms. Smith. When asked whether she wanted management to share the blame she replied, "I believe that anybody who had a role for decisions about Ashley's case should be accountable."

38 The grievor also testified about the incident referred to by Ms. Dickson. She said she "did not recall the circumstances the way [Ms. Dickson] described them, I think she is talking about a number of situations." According to the grievor, there was only one occasion in June 2007 when she saw Ms. Smith’s face turn blue, and Ms. Dickson was not there. The grievor also addressed Ms. Dickson's account of what happened in a memorandum dated March 12, 2008, discussed below.

39 The second primary worker who appeared as a witness for the respondent was Heather Magee. She has been a correctional manager at GVI since 2005 (she may be called a correctional supervisor now). She was not involved directly when staff entered Ms. Smith's cell, but she was in the secure unit at various times when this occurred. She was not at work on October 19, 2007, the day Ms. Smith died.

40 Ms. Magee confirmed the symptoms exhibited by Ms. Smith when she had a ligature tied tightly around her neck including one time when it was apparent that some blood vessels had burst on Ms. Smith's face as she was gasping for air. Sometimes Ms. Smith was aggressive when staff entered the cell, sometimes she was not aggressive; "[i]t was hard to predict what her behaviour would be each time." Ms. Smith was a regular subject of operations meetings at the beginning of each shift to brief staff coming on shift.

41 Ms. Magee described in her evidence an incident when the grievor was involved with Ms. Smith. At the time the grievor was a team leader and Ms. Magee had the equivalent position of assistant team leader with supervisory responsibility over staff. She could not recall the exact date but it was a day shift and staff had been called to the secure unit because Ms. Smith had a ligature around her neck. Ms. Magee testified that she believed that the grievor came into the unit behind her just as the staff were going to enter the cell. The door to the cell was open. The grievor directed the staff not to enter the cell and said it was because "she is still breathing", as Ms. Magee described it. The staff closed the cell door and started to disperse. Ms. Magee and the grievor then stood on the range outside the cell door and, after about 10 to 30 seconds, Ms. Smith could be heard gasping for air. Ms. Magee told the grievor that she was calling the staff back to enter the cell and the grievor said, "[i]t's your shift", again according to Ms. Magee. Ms. Magee used her radio to call the staff back and she opened a door and yelled at the control post for them to return. The staff returned, entered the cell and removed the ligature. Ms. Magee testified that she was "surprised" by this incident because "[w]hy not just tell the staff to go in?"

42 In cross-examination, Ms. Magee was asked about a training session in 2007, before October 19, 2007, involving AA. AA was from regional headquarters. The management of Ms. Smith was discussed at this training session and Ms. Magee recalled AA saying, in her words, that staff "were bordering on excessive use of force because they were going in [to Ms. Smith's cell] too soon, too many times." Ms. Magee testified that this comment was "contradictory to me because it was not numbers … [it was] based on incidents." When Ms. Magee was asked whether AA told staff to wait until Ms. Smith had stopped breathing before entering the cell, Ms. Magee replied, "It is 5 years later, difficult to say, my recollection would have been better then [October 2007]. In my head he did say something similar to that, but at this point I can't be sure." She could not recall whether the incident involving the grievor, Ms. Smith and her happened before or after the training session with AA. Ms. Magee was asked about the absence of a report from her. She agreed a report was required, she stated that she wrote one, she could not remember who she gave it to and it "should be on file."

43 The extent of the grievor's evidence on the incident described by Ms. Magee was that she was asked whether Nancy Stapleforth, Regional Deputy Commissioner for Ontario, asked about it during the disciplinary investigation. The grievor replied that she could not recall. The grievor did comment on this incident in her memorandum of March 12, 2008, as described below.

44 The third witness called by the respondent was Ms. Fancey. In October 2007, Ms. Fancey was a correctional officer working in the secure unit at GVI. In general, her duties involved the security of inmates as well as counselling them. Ms. Fancey was not at work the day of Ms. Smith's death, October 19, 2007.

45 Ms. Fancey dealt with Ms. Smith several times, including responding when she was in crisis. This often arose because of the use of ligatures but there was also head-banging and various security issues such as Ms. Smith putting paper towel over the camera in her cell. On several occasions Ms. Fancey was the "direct observe officer" and was required to observe Ms. Smith for extended periods. This could be done through a window in the cell door, through the meal slot or by going outside and observing through a secure window at the back of the cell.

46 On several occasions Ms. Fancey was part of the team that entered Ms. Smith's cell to remove ligatures. Usually the reason for entering the cell involved a staff member observing that Ms. Smith had a ligature around her neck and then staff would try to get a response from her. If there was no response, or if there were physical symptoms such as her face turning colour or gasping for air, then staff would quickly assemble to enter the cell. Ms. Smith's response was usually aggressive including kicking and hitting staff and yelling at them to get out of the cell. On other occasions, Ms. Smith would actually ask staff to come into the cell to remove the ligature because the knot was too tight and she could not get it off herself.

47 On various occasions Ms. Fancey worked with the grievor at GVI who, before September 2007, was team leader with responsibility for the operations of the secure unit. In her evidence Ms. Fancey recalled one occasion when she was the close observe officer for Ms. Smith. Ms. Fancey could not recall the date. It was not possible to get an adequate visual assessment from the range because Ms. Smith had hidden under the door or under her bed. However, Ms. Fancey could hear Ms. Smith taking deep breaths and gasping. She quickly went outside to see if she could get a view from the outside window and at one point she was "running back and forth" between the range and outside. She still could not see whether Ms. Smith was breathing or not.

48 Ms. Fancey was asked in cross-examination about the absence of any observation report by her for this incident and she answered that someone would have filed a report. Also, it may not have included Ms. Smith's name on it and only referred to an incident involving a ligature. Ms. Fancey disagreed that a decision whether to go into the cell of an inmate in the secure unit, like the cell of Ms. Smith, was based on a "gut" decision; instead, it was based on her observations as a primary worker. She acknowledged that some primary workers might enter the cell in circumstances where others would not enter.

49 In her evidence, the grievor stated that she recalled the incident with Ms. Fancey. According to the grievor, Ms. Fancey was "having difficulty deciding whether to go in [to Ms. Smith's cell] or not." In addition, AA was in the segregation unit and, during a training session, he had been critical of the use of force by primary workers in the case of Ms. Smith. The grievor said to Ms. Fancey that this would be a good time for AA to see the situation first hand. This was proposed to AA who, according to the grievor, said he was not there to do training or tell the staff what to do. AA did not testify in this adjudication. The grievor testified that she then directed Ms. Fancey "to see if she could see through the outside window whether she [Ms. Smith] was breathing and whether we should be going in" the cell. The grievor could not recall in her evidence if this incident had been put to her by Ms. Lepage and Ms. Lajoie during their interview of the grievor.

50 Ms. Fancey testified that the grievor told her not to go in the cell and they started timing the breaths of Ms. Smith. At one point the breaths were two minutes apart and Ms. Fancey testified that the grievor still told her not to enter the cell. Then the grievor went to the control to get the key for the cell, returned to the range, and at least three staff entered the cell to remove the ligature from Ms. Smith's neck. At first she was sitting down, then she stood up and Ms. Fancey testified that there was a small drop of blood on her gown. Ms. Fancey could not recall Ms. Smith being "overly aggressive" but "I can't say she was not aggressive."

51 In cross-examination Ms. Fancey agreed that Ms. Smith was a very challenging inmate but when she was asked if she was the most challenging inmate in her career she answered, "[o]ne of them." She was asked about the training session by AA and replied that the "gist" of what he said was that staff "were using too much force" with Ms. Smith and that staff "needed to be careful because there were too many risks." Ms. Fancey agreed this was a direction from regional headquarters but "we were very frustrated with what we were being told" and someone said to him [AA] that he needed to see for himself what was going on."

52 Turning to the grievor's evidence more generally, she described her primary contact with Ms. Smith in the summer of 2007 when she was a team leader in the segregation unit. In that position she was responsible for all staff in the unit and the correctional manager reported to her as well as correctional officers. Then, on September 4, 2007, a re-organization of the correctional service took effect. Among other changes the grievor was moved to the position of MIIS and the correctional manager position was replaced with a correctional supervisor position. In her evidence the grievor reviewed the job description for the MIIS position and she stated this was a "huge change in my authority" because it took away the operational part of her responsibilities; she estimated that about one half of her responsibilities as a team leader were removed. She no longer had authority over the correctional supervisor (the old correctional manager position) and she was not the line supervisor for any of the correctional officers. Overall, her new position as MIIS was "more program based" than operational. And the grievor testified that she was not actively involved with Ms. Smith after she began her position as MIIS.

53 There was no training for the MIIS position at the start; this took place during the week of October 15, 2007 in Ottawa. The grievor left GVI on October 11, 2007 to attend this training and, therefore, she was not at GVI when Ms. Smith died. The grievor also testified that it was the correctional supervisor, under the new organization after September 2007, who had operational control of staff including overall responsibility for Ms. Smith.

54 The grievor generally agreed with the descriptions of the other witnesses as to the difficulties presented by Ms. Smith. Despite these difficulties. The grievor testified she had "a very good relationship" with Ms. Smith, they spoke several times a day and the grievor reinforced Ms. Smith's positive behaviours. The grievor described Ms. Smith's use of ligatures as falling into 3 broad situations: sometimes a ligature was loosely tied around her neck with the knot on her chest, sometimes it was loosely tied with the knot at her neck and, in the third situation, the ligature was tightly tied with physical symptoms because Ms. Smith's breath as cur off. Each of these situations required different levels of response and it was not a medical emergency every time Ms. Smith put a ligature around her neck. A decision whether to enter Ms. Smith's cell was made by the staff at the time of any incident and it was usually based on a medical emergency or a threat to the safety of Ms. Smith. The grievor was never part of the team that entered Ms. Smith's cell and nor did she participate otherwise in the removal of ligatures from her neck.

55 The grievor testified that the "only time I told [staff] not to go into [Ms. Smith's cell] was when it was not safe for them to enter" because she was assaultive. For example, on one occasion, the grievor put her arm in front of staff as they were entering the cell because Ms. Smith was at the point of assaulting the staff. The grievor denied that she ever told staff not to enter the cell when Ms. Smith was "under distress" but, if staff could see that she was breathing, then that might not be a situation of medical distress or medical emergency.

56 In cross-examination the grievor agreed that she did not have any medical training. The grievor also agreed that Ms. Smith's use of ligatures could be very serious, even when it was tied loosely because it could be quickly tightened. As well, Ms. Smith could have made a mistake and pulled the ligature too tight and that event could not be predicted. Similarly, at times, because Ms. Smith hid under the door or under the door out of sight, it could not be determined if the ligature was tight or not. The grievor had seen times when Ms. Smith had a ligature, symptoms of suffocation, and the grievor agreed those were "most definitely" situations of medical distress.

57 In a memorandum dated March 12, 2008, the grievor stated, "[a]lthough the use of a ligature resulted in her death, not all times when she was in possession of a ligature was there a sense of immediate harm." When it was suggested to the grievor in cross-examination that a situation like this was still a threat, just not an immediate one, she disagreed and she confirmed that she believed that a loosely tied ligature was not a threat. It was significant to the grievor that Ms. Smith "… never said she was going to kill herself or that she had a plan to do so." It was suggested to the grievor that just because Ms. Smith did not say she had a plan, did not mean she did not have one. The grievor replied, "We are trained that they will have a plan." She agreed that there could be death by accident as a result of the behaviour exhibited by Ms. Smith.

58 The grievor's position as MIIS and the job description for that position were addressed in her evidence in chief and in cross-examination. She agreed she knew about the change in her position from team leader to MIIS before it took effect in September 2007 and she had the job description before then as well. She agreed that the "Client Services" part of the job description applied to the management of Ms. Smith and she agreed that her responsibility to plan and direct interdisciplinary teams, including psychologists, nurses and others, applied to Ms. Smith. Similarly, she was responsible "to provide advice, guidance and training to management and staff and to maintain contact with members of the mental health teams" with respect to Ms. Smith as described in the "Skills" part of the MIIS job description. The grievor agreed that she provided training to staff about situations involving behavioural problems, like those presented by Ms. Smith.

C. Policies and other documents of the respondent

59 The respondent has a number of policies related to corrections in Canada. These are called "Commissioner's Directives" or "CDs." As above the grievor was disciplined for, according to the respondent, violation of three policies, CD 567, CD 800 and CD 843. The grievor agrees that she knew about these policies at the material times.

60 CD 567 is titled "Management of Security Incidents" and it is dated "2007-03-09." I reproduce some relevant excerpts as follows:

MANAGEMENT OF SECURITY INCIDENTS

POLICY OBJECTIVES

1. To ensure the safety of staff, the public and the inmates.

2. To ensure a respectful environment that promotes ongoing dynamic interaction between staff and inmates.

3. To return the institution, after an incident, to an environment that encourages inmates to actively participate in programs and is conducive to the implementation of their Correctional Plan.

…

DEFINITION

6. Medical emergency: an injury or condition that poses an immediate threat to a person's health or life which requires medical intervention.

PRINCIPLES

7. All procedures related to this policy shall be carried out in order to promote a safe and secure environment, while respecting the rule of law.

8. All interventions designed to manage or control situations that jeopardize the security of an institution shall:

1. encourage a peaceful resolution of the incident using verbal intervention and negotiation;
2. be consistent with the Situation Management Model;
3. be based on the safest and most reasonable measures appropriate to prevent, respond, and resolve the situation; and
4. be adapted to respond to changes in the situation.

9. No person shall ever consent to or take part in any cruel, inhumane or degrading treatment of an inmate.

MANAGEMENT AND CONTROL FRAMEWORK

10. The management and control of situations must be accomplished through a framework which includes but is not limited to:

1. the use of force, ensuring that the response and the manner in which force is used are appropriate and in accordance with CSC policy and applicable legislation (CD 567-1);
2. the use of and responding to alarms to provide a secure environment and ensure the protection of staff, inmates, visitors and the public (CD 567-2);
3. the appropriate use of restraint equipment to ensure the safety of the inmate and the institution (CD 567-3);
4. the safe and secure use of chemical agents and inflammatory sprays when required (CD 567 4);
5. the use of firearms as a last resort to protect the lives of staff, other inmates and the public (CD 567-5);

ROLES AND RESPONSIBILITIES

11. The Commissioner or his/her delegate has the authority to provide both verbal and written direction with regards to safety and security within the Service.

…

17. Staff must ensure that:

1. they know and understand the applicable law, policies and procedures;
2. they demonstrate fairness, judgement and professionalism in returning the institution to a safe and secure environment;
3. they take every reasonable step to return the institution to a safe and secure environment as soon as possible when they become aware of any situation which, in their opinion, jeopardizes the safety of the institution or anyone in it;
4. they interact positively and constructively with other staff and inmates; and
5. they resolve conflicts and problems at the lowest level possible.

MEDICAL EMERGENCY SITUATIONS

18. In responding to a medical emergency, the primary goal is the preservation of life and each staff member has an important role to play:

1. non-health services staff arriving on the scene of a possible medical emergency must immediately call for assistance, secure the area and initiate CPR/first aid without delay;
2. responding non-health services staff must attempt CPR/first aid where physically feasible even in cases where signs of life are not apparent (the decision to discontinue CPR/first aid can be taken only by authorized health personnel or the ambulance service in accordance with provincial laws);

…

SITUATION MANAGEMENT MODEL

20. The model is a graphic representation [graphic included as Annex A] used to assist staff in determining the correct response options to be used in managing security situations. The purpose of these options is to maintain a safe environment in our institutions and to protect the public, staff and inmates by controlling inmates using the safest and most reasonable responses to the situation.

ASSESSMENT OF THE SITUATION

21. Each situation must be assessed in terms of the CAPRA problem-solving model.

22. The acronym CAPRA refers to:

• Client;
• Acquiring and Analysing;
• Partnership;
• Response; and
• Assessment.

23. The model facilitates the acquisition and analysis of client and situational information, and the consideration, through partners, of response strategies. Continual assessment of the effectiveness of the response is an integral aspect of the CAPRA process.

24. The inmate's current behaviour, situational factors (e.g. location, presence of weapons, other inmates, social history, etc.), tactical considerations (past behaviour, size of inmate, skills of the officer, availability of backup, etc.) and the risk relating to the incident must be assessed on an ongoing basis.

25. Responses to the situation must be reformulated to reflect any significant changes, and the risk the new situation represents. Every situation must be managed using the safest and most reasonable response appropriate to the incident.

26. When necessary and possible, staff members must consider isolating, containing, withdrawing, reassessing and re-planning their response option so that the most appropriate response is implemented. The effectiveness of previous interventions must be part of this ongoing assessment.

INMATE BEHAVIOUR

27. Cooperative - There is no verbal or physical resistance. The inmate responds to staff presence, verbal communication and complies voluntarily with verbal commands or orders.

28. Verbally Resistive - The inmate may display behaviours that include, but are not limited to, verbal assaults, profanity, taunts, or refusal to communicate with staff. However, the inmate does comply with verbal orders.

29. Physically Uncooperative - The inmate refuses to comply with staff directions or orders or refuses to move from an area or leave a cell. The inmate may offer active physical, but not assaultive, resistance by pulling or running away or resisting staff attempts to move him or her to a standing position.

30. Assaultive - The inmate threatens verbally, or implies through physical behaviours, actions or gestures, the intent to apply force to harm or injure another person. The inmate, directly or indirectly, applies force against another person in a manner that causes or has the potential to cause harm or injury.

31. Shows Potential to Cause Grievous Bodily Harm or Death - The inmate displays a behaviour that leads the staff to reasonably believe that such a behaviour could or will result in grievous bodily harm or death to another person or himself/herself.

32. Escape - Any act or attempted act to breach (break) prison, escape from lawful custody, or without lawful excuse be at large before the expiration of a term of imprisonment to which that person has been sentenced.

SELECTION OF APPROPRIATE MANAGEMENT STRATEGIES

33. The appropriate management strategies must be chosen following the initial and ongoing assessment of the situation as detailed in paragraphs 21 through 26.

34. Strategies may include, but are not limited to, use of front-line staff, Aboriginal Elders/religious leaders, unit teams, extraction teams, crisis negotiators, emergency response teams, crisis management teams, police or military assistance.

VERBAL INTERVENTION, CONFLICT RESOLUTION AND NEGOTIATION

35. Whenever appropriate, staff must attempt to manage situations using dynamic security, staff presence, verbal intervention, conflict resolution, negotiations, or verbal orders.

RESTRAINT EQUIPMENT

36. Restraint equipment may be used in routine situations, such as an escort or transfer, where it is specified by policy that such equipment may be applied on a cooperative offender.

37. Restraint equipment is one of several response options that may be used to manage a situation when the inmate's behaviour is within the cooperative to assaultive range.

INFLAMMATORY SPRAYS, CHEMICAL AGENTS AND PHYSICAL HANDLING

38. These three response options are a continuum of responses that are most often used in combination to manage situations where offender behaviour is physically uncooperative.

39. These responses would be used when verbal intervention or restraint equipment have proven ineffective or are assessed as inappropriate options for the situation.

BATONS AND OTHER INTERMEDIARY WEAPONS

…

FIREARMS

…

DEBRIEFING AND REPORTING

47. Staff and management must debrief and report throughout the management of the entire situation in order to facilitate the ongoing assessment of situational factors and management options. Upon resolution of the situation, the necessary verbal and written reports must be completed, in accordance with CD 567-1.

48. Staff must be provided with critical incident stress management services when required.

…

[Sic throughout]

[Emphasis in original]

61 CD 800 is titled "Health Services" and is dated "2007-03-09." Section 25 ("Routine Care and Medical Emergency Situations") includes "Medical Emergency Situations" from section 18 of CD 567, above. Section 3 of CD 800 also includes the same definition of "medical emergency" as in section 6 of CD 567.

62 CD 843 is titled "Prevention, Management and Response to Suicide and Self-Injuries" and is dated "2007-03-09." Section 28 ("Medical Emergency Situations") includes the same language as section 25 of CD 800 and section 18 of CD 567. CD 843 also includes the same definition of "medical emergency" as the other two directives. I reproduce other parts of CD 843 as follows:

PREVENTION, MANAGEMENT AND RESPONSE TO SUICIDE AND SELF-INJURIES

POLICY OBJECTIVES

1. To ensure the safety of and intervention for offenders who are suicidal or self-injurious.

…

DEFINITION

4. Medical emergency: an injury or condition that poses an immediate threat to a person's health or life which requires medical intervention.

5. Suicide: the intentional taking of one's life.

6. Suicide attempt: an intentional self-inflicted injury or action that does not result in death although death was intended.

7. Self-injury: the deliberate harm of one's body without a conscious suicide intent.

8. Suicide watch: the isolation of an inmate in response to an assessment of imminent danger for self-injury or suicide.

PRINCIPLES

9. Protection of life takes precedence over preservation of evidence.

10. Self-injurious or suicidal offenders shall not be subject to disciplinary measures for their self-injurious behaviour.

…

RESTRAINTS

16. Restraints, including security garments, may be used to reduce the risk of self-injury. This shall be done in accordance with Commissioner's Directive 567-3 - Use of Restraint Equipment.

RESPONSE TO SUICIDAL AND SELF-INJURIOUS OFFENDERS

17. Staff shall take the necessary actions to ensure that suicidal and self-injurious offenders are referred on an emergency basis to a psychologist or a health service professional for appropriate intervention.

…

22. The psychologist or designated members of the interdisciplinary mental health team managing the case shall provide staff with directions on the specific conditions of the suicide watch, including the procedures to be used to monitor the inmate's activities.

…

[Sic throughout]

[Emphasis in original]

63 The respondent also has policies titled "Code of Discipline" and "Management of Emergencies."

64 There is also a document dated November 1994 titled "A Guide to Staff Discipline and Non Disciplinary Demotion or Termination of Employment for Cause." The grievor relies on specific parts of that document.

65 This guide states that hearsay is not the best type of evidence and that a disciplinary investigation should be done as quickly as possible after information is available. Section 4 states it is important for an employee to be "advised of the exact nature of the allegations" and important to "formulate" the appropriate questions for the investigation. As well, an employee has a "right to respond to, and provide any information about allegations" made against her and the investigation is to "obtain facts by hearing the employee's side." Section 4(h) of the guide states that "[a]ll relevant statements from witnesses and the employee should be documented and, if possible, signed and dated by the person making the statement." Section 2(d) of the guide says "any new or contradictory evidence should be investigated and the findings documented."

D. Investigation

66 Ms. Stapleforth, Regional Deputy Commissioner for Ontario, testified that she first knew about the death of Ms. Smith when she received a call on her cell phone on the day of the death, October 19, 2007. The information she received was to the effect that Ms. Smith had been taken to the hospital; later that day Ms. Stapleforth was told Ms. Smith had died. Ms. Stapleforth immediately directed that information be gathered about what happened and she called the commissioner of the correctional service to advise him. A board of investigation is required for the death of any inmate in custody. That investigation was initiated and its report was completed in February 2008.

67 Ms. Stapleforth testified that after information related to Ms. Smith's death was collected and reviewed, including video tapes, and there were "serious concerns" in regional headquarters about the time it had taken staff to intervene with Ms. Smith during the incident that resulted in her death. Therefore, a decision was made to convene an investigation into the role of staff and management.

68 The grievor is a member of management, not a member of the bargaining unit, and therefore, the investigation into the role of management is relevant to this grievance. On January 7, 2008, Ms. Stapleforth signed the following convening order for this investigation:

CONVENING ORDER

DISCIPLINARY INVESTIGATION

Under the general powers of management, I hereby convene a Disciplinary Investigation into the circumstances surrounding the death of inmate Ashley Smith … in the Segregation Unit on 19 October 2007 at Grand Valley Institution for Women.

The Disciplinary Investigation shall be conducted in accordance with Corrections and Conditional Release Act and Regulations, any applicable Commissioner’s Directives. CSC Code of Discipline, CSC Standards of Professional Conduct, TB Policy Guidelines for Discipline, Regional Instructions, Employee Security Clearance/Classification and any amendments thereto.

The results of this Disciplinary Investigation may lead to disciplinary action(s) being taken.

The Board shall consist of:

Chairperson:	Brenda Lepage, Warden, Saskatchewan Penitentiary
Member:	Lynn Lajoie, Regional Administrator Human Resources, (ONT)

The Board will examine and investigate:

1. The possible existence of immediate pre-indicators to the incident under investigation and, if so, the adequacy and appropriateness of management direction provided;
2. The adequacy and appropriateness of reporting and recording of relevant information respecting the incidents involving Ashley Smith from August 31 to October 19, 2007;
3. The adequacy and appropriateness of communications between frontline staff and management, middle managers and senior management, and amongst senior managers at GVI, respecting the management of Ashley Smith from August 31 to October 19, 2007;
4. Whether managerial obligations, to ensure staff were properly trained, equipped, briefed, and supervised in order to perform their primary responsibilities, were fully met;
5. The adequacy and appropriateness of management direction respecting the management of medical emergencies;
6. The adequacy of management’s response to the incident;
7. Compliance with policies, procedures and responsibilities;
8. Any issues of compliance by members of the service; and
9. Any other issues relevant to the incident on 19 October 2007.

I FURTHER DIRECT the Board to provide me with its findings relevant to the conduct of investigation on the above matter.

…

[Sic throughout]

69 The convening order also empowered the investigators to "adopt such procedures and measures as may be deemed necessary for the proper conduct of the investigation" and they had broad powers to search and access information.

70 As reflected in the convening order, Brenda Lepage was the chairperson for this investigation. Ms. Lepage testified that, at the time of her appointment, she was the warden at Saskatchewan penitentiary and she had no previous experience or contact with Ms. Smith. Prior to her position at Saskatchewan Penitentiary she had extensive experience in the corrections system in various positions, including significant experience in women's corrections.

71 Ms. Lepage first became involved with the investigation when she received a telephone call sometime in December 2007 to ask her to chair it and she received a very general briefing at that time. She agreed to be chair. Ms. Stapleforth, the person who convened the investigation, testified that the practice was to use senior members of the correctional service outside the jurisdiction of the incident being investigated and to include someone with human resources experience from the region. Hence the appointment of Lynn Lajoie, Regional Administrator Human Resources, to work with Ms. Lepage on the investigation. Ms. Lepage understood from the beginning that her report and findings could result in discipline to staff but someone else would make any decisions about discipline. As well, in cross-examination, Ms. Lepage agreed that her mandate extended very broadly and was not limited to incidents or people at GVI.

72 Following the appointments of Ms. Lepage and Ms. Lajoie, the former travelled to Kingston, Ontario, to meet with regional staff including Ms. Stapleforth and Ms. Lajoie. As can be seen from the convening order, the original idea was to complete the report in two weeks. However, at the beginning, Ms. Lepage questioned whether that would be enough time and she advised her superiors that she might request an extension. In the end, the interviews and report were completed in three weeks, including a one week extension. Ms. Stapleforth acknowledged in her evidence that this was a short time, but she believed the investigation had to be completed as soon as possible.

73 In her evidence Ms. Lepage described the process she used for the investigation. On the first day in Kingston, she received a briefing from regional staff and she was told that she was to investigate the role of management in the death of Ms. Smith. She was not investigating the death itself or the role of staff; these matters were the subject of separate investigations. Ms. Lepage and Ms. Lajoie then developed a list of people they considered necessary to interview. Most of these were at GVI but others were in Kingston and Ottawa. In her evidence Ms. Lepage estimated that about 80% of the people they were to interview were determined at the beginning, in Kingston. Questions were also drafted in the first days to use as a guide for the interviews. Ms. Lepage testified that she left those with regional headquarters after the investigation and she was not sure if they still existed.

74 Each person to be interviewed was contacted by telephone, email or in person to schedule an interview time and each person was advised he or she could have a representative present. The interviews were not recorded but notes were taken by the two investigators and a summary of these notes were included in the final report. It was open to the interviewees to record the interviews but Ms. Lepage could not recall anyone doing so. Video tapes from GVI were reviewed including the video tape depicting the death of Ms. Smith. Various emails were also reviewed. Interviewees were asked to provide written information, including emails, if they thought the material was relevant.

75 In cross-examination Ms. Lepage testified that the standard of proof she used was the civil standard of “reasonableness” and she did not apply the standard of clear and cogent proof. Further, interviewees were entitled to procedural fairness and the opportunity to respond to information about them. None of the interviewees were given copies of the notes of their evidence to review and none were given a draft copy of the report to review before it was released. Similarly, Ms. Stapleforth at regional headquarters, only received the final version of the report. As listed in the report, 21 people were interviewed. In cross-examination Ms. Lepage agreed that none of the staff that were working when Ms. Smith died were interviewed. She explained that she had access to their reports but she agreed those reports were not listed in her report. She also stated that security in the secure unit where Ms. Smith died was not part of the mandate of her investigation.

76 The investigators then spent a week in Kitchener interviewing people at GVI and then they interviewed people in Kingston and Ottawa. The last, third week was spent “16 hours a day, locked in an office, writing our report,” according to the testimony of Ms. Lepage.

77 The investigation report is dated February 25, 2008. It is a lengthy document and it makes a number of findings about various individuals, the grievor being one of them. Broadly speaking, it is structured in two parts, a narrative and a summary of the notes taken by Ms. Lepage and Ms. Lajoie when they interviewed the 21 interviewees. Four of the latter are directly relevant to this grievance: interviews with Ms. Magee, Ms. Dickson, Ms. Fancey and the grievor.

78 I reproduce the relevant parts of the notes of the interviews of Ms. Magee, Ms. Dickson and Ms. Fancey, as contained in the investigation report, as follows,

[Heather Magee]

CM Heather Magee was interviewed on 09 January 2008 at Grand Valley Institution. This interview was not tape recorded.

…

CM [correctional manager] Magee provided this Board with an overview of the Use of Force Training provided by AA from RHQ Ontario. He told them that they were bordering on excessive use of force because they were going in too many times to remove the ligatures. AA may have told them that they had one minute if Inmate Smith quits breathing. CM Magee informed this Board that since 1997, Inmate Smith was the first inmate that she had used OC spray ["pepper" spray] on.

CM Magee expressed concern that she and other staff had told management over and over again that this was a mental health issue but we were told repeatedly that it was a behavioural issue. She stated that when Inmate Smith had been sent to Grand River Hospital she didn’t stay and felt that this was not helping the situation. She felt that Inmate Smith needed mental health intervention. She further stated that front line staff and CM’s are not psychiatric nurses. Because of the stress that staff felt in continually dealing with Inmate Smith’s continued ligature use, we asked to have some other high needs inmates transferred out of GVI as we were dealing with them also and staff were becoming burnt out.

CM Magee informed this Board that if staff saw a ligature and went in to take it from her it would be considered a Use of Force. On one occasion, CX 2 Angie Fancey was part of a Use of Force response and removed a ligature from Inmate Smith’s neck. At the same time, CX 2 Fancey noticed another ligature tied around Inmate Smith’s thigh and removed it and got in trouble for it as she had infringed on Inmate Smith’s rights. Correctional Managers were continuously receiving memos from DW [deputy warden; "BB"] indicating deficiencies and were advised to counsel their staff. Some staff members thought that the memos from BB were discipline. Some pending disciplinary actions were later withdrawn when the Use of Force video was reviewed by RHQ and NHQ staff members.

CM Magee felt that Inmate Smith’s behaviour was a game to get physical contact. She stated that CSC was getting all of the blame for what happened but that it started way back. She felt very sad that Inmate Smith had to act out to get attention.

When asked if she felt that there had been confusion amongst staff whether to go in the cell or not, she stated that we were told that we were going in too early; if the ligature was on her neck but she was still breathing we were not to go in. She stated that BB and Michelle Bridgen gave that direction. On one occasion she recalls an incident where she was called to the Max Unit and that Michelle Bridgen told everyone “out out” because she was breathing. CM Magee stated that it was her normal practice to go to the Segregation Unit if there was a situation with ligature use by Inmate Smith. On another occasion she recalls receiving a call while she was OIC and she attended the Unit. Inmate Smith was between the bed and the cell door and staff couldn’t see her so CM Magee gave them an order to enter the cell. Staff went in and then M. Bridgen told them to get out and stated “she’s breathing, she’s fine”. Staff withdrew and some staff left the Unit. CM Magee stayed in Segregation and heard Inmate Smith take some deep breaths and gasps. By this time, Inmate Smith had moved over by the door. CM Magee gave the order to enter the cell and Michelle Bridgen said OK.

At the After Ops meetings CM Magee informed this Board that they were told that they were going in too many times. After this meeting, this direction was communicated by one CM to another. CM Magee stressed that she was terrified of what Inmate Smith was going to do and didn’t know what we were supposed to do. She stated “that she wanted to help Inmate Smith with every ounce of her being”. She felt that management didn’t understand the stress that the CM’s and front line staff were under in dealing with Inmate Smith continually.

…

[Sic throughout]

[Nancy Dickson]

Officer Dickson was interviewed on January 14, 2008 in Kitchener, Ontario. This interview was not recorded.

This Board asked Officer Dickson what was your understanding of how to respond to Inmate Smith ligatures and did that change. Officer Dickson stated that she had to enter inmate Smith’s cell to remove ligatures. A couple of occasions I was restrained by Michelle Bridgen (put her hand out in front of me) Inmate Smith was at the door, blue, and you could see pitichia. She put her gloves on and said I’m ready to go. Michelle Bridgen said no, she’s breathing, she’s fine. I was taken aback but moved away. Inmate Smith lay down in front of cell door. You could hear her laboured breathing. Officer Dickson left the Unit and was walking past the gym and got radioed back to enter the cell and remove the ligature. Another time CM "CC" said inmate Smith was attention seeking and to not go in. They were told to view her through the back window (not easy to see). They negotiated and monitored for a few hours and finally went in. CC had left and staff decided to go in.

This Board asked Officer Dickson what direction she received at shift briefings. Officer Dickson stated that staff were told if she is still breathing you are not to enter the cell. This is attention seeking behaviour, stay back and observe. I questioned my Supervisor where the direction came from. The answer was vague but implied that it came from the Deputy Warden and A/Warden.

Officer Dickson stated that CM "DD" indicated inmate Smith was high suicide risk after 15 October 2007 Use of Force. Direction didn’t change.

The day the officers were suspended, Deputy Warden BB spoke to me and indicated that it was excessive to cut of ligature from inmate Smith’s thigh. I would do the same again knowing her history of ligature use.

Officer Dickson was never involved in the after Ops for any discussion on inmate Smith or management plans. She never saw the management plans but highlights were placed on the whiteboard in the Segregation Sallyport. She had discussions with CC indicating that this new direction was BS. She wasn’t as comfortable with Bridgen as she was new. On the day when Michelle Bridgen stopped her, there were discussions about the situation and Michelle Bridgen was attempting to justify her decision. A week or so before, the Deputy Warden indicated that this inmate Smith thing was all about auto-eroticism.

This Board asked Officer Dickson if she thought that management played a role in inmate Smith’s death and if so how. Officer Dickson stated that during her first stay [name of person] was trying to portray that we could handle inmate Smith to help her control. Most sitrep reports don’t show reality. Didn’t send her back to Nova as were doing a good job. During the second stay it was poor direction re don’t enter cell if breathing. Officers were second guessing themselves and worrying about discipline and their jobs. Managers down played her psychiatric well-being. Management was motivated by reducing Use of Force and attention. Officer Dickson stated that she is disgusted with the lack of accountability and action against [the grievor, "EE", BB and CC]. CSC is protecting their managers. Shit continues to roll downhill. All four need to step up to the plate and admit they made mistakes in judgment and direction. For years GVI hasn’t followed policy.

…

Officer Dickson provided an example of how A/CM [name of person] took Use of Force tapes out of camera because she didn’t like how she’d done her briefing. She took tape out of camera and ripped it all up – two times in two hours. Because of this there ended up being only one tape of one incident on that date when there should have been three. Officer Dickson asked A/CM [name of person] what she was doing and A/CM [name of person] stated “Oh, they do this all the time at KP [Kingston penitentiary]”.

[Sic throughout]

[Angelique Fancey]

Angie Fancey was interviewed on January 14, 2008 in Kitchener, Ontario. This interview was not recorded.

This Board asked Officer Fancey to describe the approach for the management of inmate Smith. Officer Fancey stated that initially we would go in and cut off ligatures. After we got to know her behaviour, we would check to see if she was breathing, if she had a ligature and was standing on her bed. If she was perfectly fine, we didn’t need to go in. It may have changed when she was here the first time. During the second time Inmate Smith was at GVI, we could use OC spray, give her three direct orders first, open the door. If she didn’t comply, then use the spray. Direction came from EE because she was on the unit and gave this direction herself. After that first weekend we had used spray a number of times, and it was found to be ineffective and the plan changed. Officer Fancey stated three orders, if not compliant, open door, see if she moved and check for breathing then close door – avoid physical contact. The standard was unless you could not see her breathe or move, then you didn’t go in.

Officer Fancey stated that Inmate Smith would tie ligatures, hyperventilate, hold her breath longer and longer. It was getting very scary. She was viewing through the back window and timing her breaths – 10 – 15 per minute. Haven’t seen her breathe in over a minute. We need to go in but Michelle Bridgen said no. Went back to the window, couldn’t see her breathe again, now two minutes and went back to Michelle Bridgen and other officers agreed so Michelle Bridgen said okay. Michelle Bridgen went into the bubble to relieve officer. We noticed blood on inmate Smith’s nose. The last few times she didn’t resist.

…

This Board asked Officer Fancey to describe the Use of Force training. Officer Fancey replied that AA indicated that there were too many uses of force and told them unless we saw she wasn’t breathing, don’t enter.

…

[Sic throughout]

79 I also reproduce the investigators' notes of their interview with the grievor, as contained in their report.

Michelle Bridgen was interviewed in Kingston on 15 January 2007 and she was accompanied by a colleague [name of person]. The interview was not recorded.

Michelle Bridgen was asked to describe her understanding of the approach to be used by staff when dealing with Inmate Smith’s ligature use. She stated that if Inmate Smith had a ligature, staff were to try to talk to her into giving it up. Primary Workers were to assess constantly to see if there was an imminent threat and if they thought there was, they were to go in and remove it as a spontaneous Use of Force. Discussions occurred at the After Ops meetings regarding Use of Force that had been used. Every time, the management plan needed to be reviewed and revised accordingly. Staff who were involved were herself, CC or other CM’s who were on duty, Sr. Psychologist, Psychologist, DW, Warden, Chief Health Care, MAI or MP [two names of persons]. When the plans were amended they were shared via e-mail to the Max Unit staff from the Warden’s account.

Ms. Bridgen informed this Board that prior to 04 September 07 she had been on assignment as the Team Leader of the Max Unit, but from 06 September 07 she was on assignment as the Manager Intensive Strategy (MIIS) and had no supervision role for any staff. She provided only advice to staff and not direction. She stated that she never received any feedback from staff. She further stated that no one ever told her whether they liked it or didn’t like it or had any concerns relating to Inmate Smith.

This Board questioned Ms. Bridgen as to whether she was ever involved with any incidents relating to Inmate Smith. She replied yes. When asked what her role was, she stated that’s where my office was and I was there at times. She recalled being on the Segregation Range as management presence but she never responded. When asked what her role was in this situation, she stated that her role was to observe and ensure things were being done correctly. She recalled an incident where PW [name of person] was in charge of segregation and staff were having trouble seeing Inmate Smith and said that they were going to have to go in because she had cocooned herself under her gown. They opened the door and Inmate Smith was fine. The staff left the range. Ms. Bridgen went to see how Inmate Smith was and Inmate Smith swore at her. PW [name of person] came back on the range and by this time Inmate Smith’s breathing had become laboured and the staff wanted to go in. Ms. Bridgen told them to make sure you know what you are doing when you go in.

Ms. Bridgen stated that she had a lot of interaction with PW’s Fancey and [name of person] and they spoke about dealing with Inmate Smith. They also spoke to her about the Use of Force training. Ms. Bridgen told them to make sure that their reports reflected what occurred on the tape. She also recalled another incident (22, 23 Sep 07) when she had to stay in Kitchener for the weekend for the management presence role. She came in to GVI on the Saturday and spoke to the staff in the unit. She was told that her role was to comfort staff. The A/Warden asked her to go in and make sure the staff were OK and she thought that this was probably because of the numerous Uses of Force that had occurred.

This Board asked Ms. Bridgen if she had ever had any discussions with management regarding Inmate Smith’s escalating ligature use. She replied that she was aware of the escalation but didn’t recall any pertinent discussions. Her understanding was that staff were to go in if there was imminent danger. She stated that we all thought that the risk was escalating and we had to become more vigilant. She stated that "FF" created some behavioural contracts for Inmate Smith and these were used both before and after Inmate Smith was moved to the Pod. Some days Inmate Smith’s behaviour was good and other days it was bad. She further stated that if Inmate Smith only tied one ligature in the day, it was a good day. She did not attend the Use of Force training. She did however speak with PW [name of person] after the training and staff were concerned because they were being counseled at times for their paperwork completion, however, on days where staff were dealing with numerous incidents with Inmate Smith it was hard to keep them all separate.

Ms. Bridgen indicated that when she had discussions with staff regarding responding to Inmate Smith’s cell, they would discuss what they would do if they went into her cell. Ms. Bridgen told them that if you always had the right arm then you could plan when you came on shift to always have the right arm and if she had to be cuffed then you had to write down why she was cuffed. She told them that their reports had to reflect the reasons why they did what they did.

When asked if any other restraint options were discussed, she stated that she recalls one time when A/Warden "GG" used the IERT twice and Inmate Smith was strip searched to remove glass and she had tied a ligature around her neck and was turning purple. A/Warden GG authorized the use of the chair, but by the time this was authorized, Inmate Smith was sleeping. When asked if she had ever been involved in the attempts to get different gowns for Inmate Smith, she stated that she tested one gown that was provided which was paper, however, it had fibres throughout it and was actually worse than the security gown and could certainly be used to tie ligatures.

Ms. Bridgen stated that if there was a Use of Force, it was discussed at the next Ops meeting and then again at the After Ops meeting. They were just trying to figure out what she was doing and how to manage her. When asked if she was aware of Inmate Smiths’ high suicide risk, she stated that she wasn’t as she was in Ottawa on training the week before 19 October 2007. She further stated that the management protocol didn’t apply and that’s why the management plans were created.

When asked to describe her role as MIIS, she stated that this new role was more program related and also included the Secure Living Environment. She ensured that the women were following the Operational Plan and she was working with the Max Unit women so that they could become medium. She stated that Inmate Smith was not a management protocol inmate and that GVI wasn’t really using DBT but were using DBT concepts. She explained that many things were tried to assist Inmate Smith such as painting a teddy bear, phone calls to her parents, buying books on tape, radio/TV outside of her cell, paper and crayons that she had to return. When asked who decided what Inmate Smith could or couldn’t do, she stated that this information came from the behavioural agreements and if she had good behaviour Inmate Smith could choose what she wanted to do. The PW’s who worked in the Max Unit would provide the rewards. The management plans were drafted by DW BB with input from the Warden, Psychology and the Correctional Managers.

This Board asked Ms. Bridgen if she had ever had any conversations of what would be considered medical distress. She stated that when determining when to go in or not was to be a personal choice of the officer’s based on constantly assessing her. They were to assess if she was breathing, walking, talking, is the ligature tight and there was no right or wrong. Ms. Bridgen told staff that this will “test your convictions” as it is human nature to go in right away and explained that if a staff member was posted for 12 hrs on the Segregation Post and they needed a break because of numerous incidents involving Inmate Smith, that they were no lesser of a guard and they just had to say that they were tired and needed a break. She also told them that if you go in, you need to have a plan and always ensure their own safety and security.

This Board asked Ms. Bridgen if she ever told an officer not to go in to which she replied no. She did recall a time when speaking with PW [name of person] and she wanted to go in but Ms. Bridgen told her that PW [name of person] was in charge of Segregation and it was his decision and they actually went in twice. She was comfortable with the direction given to staff. She stated that at this time she was only on the range for approximately 7 minutes.

This Board asked Ms. Bridgen if she recalled a time when she relieved an officer in the Max Unit Control Post so that they could respond to an incident. She replied yes, but she did not recall the events and further stated that she did not have access to the information anymore. This Board asked Ms. Bridgen if she had ever used the statement; as long as she’s breathing, you don’t have to go in – she replied yes, but never by itself. If staff were doing winds and Inmate Smith was under her gown and couldn’t see her, then they were to go in and assess. She stated that she had never been part of any discussions regarding removing ligatures from Inmate Smith. Ms. Bridgen informed this Board that she also had not been part of any discussions regarding any additional restraints nor had she spoken to any PW’s about restraints.

This Board questioned Ms. Bridgen regarding the conditions of confinement for Inmate Smith. She stated that Inmate Smith had no blankets because she used them to make ligatures. She was aware that Inmate Smith used her toilet paper to cover the camera and she was aware of the limited amount that would be given to Inmate Smith, but she was not aware of how or who determined the decreased amount that she would receive. Ms. Bridgen informed this Board that she continued to complete Segregation walks and signed the Segregation Log Book until they could determine who was responsible for this in her new role as MIIS as she had completed this previously in her role as Team Leader. She stated that she would report on any concerns that she saw, however, further stated that she never raised any concerns with the Warden or Deputy Warden from her Segregation walks.

Ms. Bridgen stated that after Inmate Smith got the glass she would never stop making ligatures while before we could control how many she had. Ms. Bridgen thought that Inmate Smith had made great progress for about a week and then she was moved to the Pod and at that time, she gave up her last ligature. The move to the Pod was Ms. Bridgen’s plan and she discussed it with PW’s Fancey and [name of person] who then discussed it with their peers. They came back and informed Ms. Bridgen that they were all on board. After this, Ms. Bridgen presented the plan to the A/Warden, DW, CM’s, Sr. Psychologist and Chief Health Services. Everyone had concerns that the move may have been too soon, some thought we should take the risk, others thought that we shouldn’t. In the end it was the A/Warden’s decision and it was approved.

Ms. Bridgen stated to this Board that she did not recall any discussions at the Ops or After Ops meetings relating to medical distress and what that meant. She further stated that she had not been involved in any discussions about too many Use of Forces. She stated that she did not participate in any operational discussions. She stated that she had not completed DBT/PST training, but did say that she sat in on one training session.

Ms. Bridgen spoke to this Board about her frustration with women and the lack of facilities for them. She was frustrated regarding the process for inmate transfers and stated that we were just told that we were getting Inmate Smith because Nova needed a break. The A/Warden told us that because of a recent hostage taking at Nova, they didn’t have the staff to monitor Inmate Smith. Ms. Bridgen stated that she felt that Inmate Smith should have stayed at Nova because of her upcoming release. She stated that the WOS at NHQ reviewed the management plans.

The interview ended and approximately 10 minutes later, Ms. Bridgen returned to provide this Board with some additional information. She stated that on that Saturday when the A/Warden asked me to go in and talk to staff, she didn’t feel that this was her role as she didn’t supervise staff, but both A/Warden GG and A/Warden EE felt because of my CSC experience I was selected. She indicated that she continued to argue that this was not her role and she was ordered to remain in Kitchener over the weekend.

During this incident, it was the first time that Inmate Smith had turned purple. CM [name of person] was OIC and Ms. Bridgen met with staff and reviewed the CAPRA and SMM with staff. The staff thanked her and Ms. Bridgen felt that the staff just wanted to know that they were doing the right thing. Staff continued with what if questions and Ms. Bridgen explained imminent danger to them and their role. Staff were questioning if they should be going in and CM [name of person] stated that if she’s purple, I’m going in every time. Ms. Bridgen told CM [name of person], that’s OK but you have to be able to document why you went in and ensure you know what you are going to do and that you have a plan. When asked if she thought that staff may have been confused, she stated that she didn’t think that there was any confusion as they were nodding their heads and thanking her for her explanation. She told them that making a decision to go in wasn’t just one thing, it encompassed a whole bunch of things, they had to rationalize why and I think that was the comfort that they needed.

[Sic throughout]

E. The investigation report

80 The investigation report completed by Ms. Lepage and Ms. Lajoie is dated January 25, 2008 and it was titled "Disciplinary Investigation into the Management of Inmate Ashley Smith … 31 August 2007 - 19 October 2007." Despite its title, the report made no findings about discipline of individuals. As above, in her evidence Ms. Lepage stated that she knew that discipline might be the result of the findings of the report but any discipline would be decided by someone else.

81 The report concluded that Ms. Smith’s lengthy history of self-injurious behaviour was a pre-incident indicator. As well, the management plans in place, coupled with the direction to allow her to fashion, use and maintain ligatures, created "an immediate and proximal risk factor that was not adequately addressed by the management plans." The report also concluded that the psychological assessments and results during a court appearance by Ms. Smith just before October 19, 2007 were pre-incident indicators. Similarly, the threat by Ms. Smith to commit suicide on the shift of a specific officer was a pre-incident indicator. With regard to communication among management the report concluded that there were poor communications and the responsibility belonged to all members of the management team.

82 I reproduce excerpts from the narrative of the investigation report as they relate to the grievor and to some of the general discussion and findings of the investigators that are relevant to this adjudication:

…

c. The adequacy and appropriateness of communications between frontline staff and management, middle management and senior management, and amongst senior managers at GVI, respecting the management of Ashley Smith from August 31 to October 19, 2007.

…

The main focus of management’s communication both with each other and with their staff from August 31 to October 19, 2007 was the management of Ashley Smith. It dominated the briefings at morning operations meetings, after-ops meetings, IDT meetings, management plan meetings, Use of Force reviews and numerous individual and small group discussions.

CM’s and PW’s interviewed all describe a change in management strategy regarding Smith’s use of ligatures over the course of her stay.

On the first weekend she arrived, a number of interventions requiring force to remove ligatures occurred. From a review of the Use of Force tapes and information provided in interviews, the staff and CM’s appear to have been utilizing an approach of going in quickly to remove ligatures if she could not be seen or was seen to be purple and that they would use force to do so if necessary. PW’s on shift that weekend, indicate EE was on site and approved the use of O/C spray to remove ligatures. EE indicates she was on site and recalled a general discussion that O/C spray was a tool/option available to them if required but does not recall giving specific direction. The officers did use O/C spray during their interventions due to Smith either becoming assaultive (lunging at an officer, attempting to bit and spit on staff) or because she would not comply with orders to remove the ligatures. The officers felt it was important to use force to cut the ligatures off as her self-injurious behaviour was endangering her life as evidenced by what they described as laboured breathing and her face turning purple. The Warden’s subsequent review of the Use of Force package dated September 6, 2007 indicates the following:

Package #1: “There does not appear to have been a need to enter the cell as the inmate is speaking, is standing at the window and does not appear to be in medical distress and they did not withdraw and re-assess the situation before entering the cell.”

Package #2: “It does not appear that the use of O/C spray was the least restrictive measure available to staff in this incident and they did not withdraw and reassess the situation before entering the cell.”

The DW then directed the CM’s of all staff involved to counsel those staff and advise them of proper procedures.

The A/Warden and DW repeatedly told the interviewers that they always made it clear to staff and managers that they needed to “make their own judgment call” in determining when to enter Smith’s cell and remove a ligature. BB states she told managers that the approach was to be that if Smith appeared to be in distress or could not be seen, staff were to open her cell door, check on her, comply with the Situation Management Model, assess and reassess. An email detailed October 10, 2007 from BB to the CM’s, Michelle Bridgen (MIIS) and [name of person] (DW Clerk), indicates the following:

“A few of the videos depict situations whereby your staff are following the management plan and open Ashley’s cell door six inches to view Ashley and determine that she is safe and breathing. What appears to be happening is that your staff are not withdrawing and reassessing as Ashley starts to talk and/or gets up. You need to assist/brief/communicate with your staff and ensure they are aware of this, comply with the situation management model and be alerted to this serious no compliance issue.”

In addition to the written direction (emails, use of force comments and memos) staff and managers were being given direct, verbal feedback by the A/Warden, DW, MIIS Bridgen and CC. A sample of those interactions as described to the Board during investigation interviews follows:

CM Heather Magee was asked if she felt that there had been confusion amongst staff whether to go in the cell or not, she stated that we were told that we were going in too early; if the ligature was on her neck but she was still breathing we were not to go in. She stated that DW/A and Michelle Bridgen gave that direction. On one occasion she recalls an incident where she was called to the Max Unit and that Michelle Bridgen told everyone “out out” because she was breathing. CM Magee stated that it was her normal practice to go to the Segregation Unit if there was a situation with ligature use by Inmate Smith. On another occasion she recalls receiving a call while she was OIC and she attended the Unit. Inmate Smith was between the bed and the cell door and staff couldn’t see her so CM Magee gave them an order to enter the cell. Staff went in and then Ms. Bridgen told them to get out and stated “she’s breathing, she’s fine”. Staff withdrew and some staff left the Unit. CM Magee stayed in Segregation and heard Inmate Smith take some deep breaths and gasps. By this time, Inmate Smith had moved over by the door. CM Magee gave the order to enter the cell and Michelle Bridgen said OK.

On another occasion CM Magee recalls that Inmate Smith had a ligature around her neck and was turning blue, and was lying in the corner moving her feet, then the blood vessels in her face burst and at that time it scared CM Magee and they went in immediately and removed the ligature. Afterwards CM Magee spoke with Inmate Smith about the harm she could be inflicting on her body and then Inmate Smith did the same thing two hours later. After these incidents, CM Magee called BB to update her and informed BB that she felt that Inmate Smith had “upped the ante” and that this was becoming a dangerous situation. BB informed CM Magee that staff had waited too long to go in. CM Magee stated to this Board “damned if you do, damned if you don’t.”

This Board asked CM [name of person] if the plan/strategy to manage Inmate Smith’s use of ligatures ever changed. CM [name of person] stated that there were no real changes in the management plans and that there was a concern regarding the frequent Use of Force. She recalled a time when she personally met with EE regarding lots of staff getting hurt and EE indicated to CM [name of person] that she wanted more coaching done. Staff were to open the door to assess and if they thought it was manageable, they were to withdraw and reassess. She recalled an incident on 22 September 2007 and CM [name of person] was OIC, at 1010 staff went in, Inmate Smith was standing but her face was purple so staff cut off the ligature. BB felt that that was excessive Use of Force and wasn’t a medical emergency. Over the phone she was told by BB, that if she was breathing she was fine and CM [name of person] could be subject to discipline. CM [name of person] advised this Board that she told BB that she wasn’t going to follow that direction.

This Board asked [name of person] what was the management approach to dealing with Inmate Smith and her ligature use. He replied that there were a lot of discussions and they were focused on a reactive nature and he felt that there were no proactive discussions. He recalled direction from BB that was passed to him by CM Magee that if Inmate Smith had ligatures under her gown we were not to remove them even if we could see them as it was an invasion of Inmate Smith’s privacy. He recalled that BB called him directly to ensure he understood this direction. He stated that he told BB that he didn’t think that Inmate Smith should have the gown she had because it was considered modified and we don’t allow inmates to have modified items. He thought that this had occurred sometime in October 2007.

CM/C informed this Board that the first few weeks after Inmate Smith’s arrival staff were always reacting and responding to her cell, however, after senior Management reviewed several Use of Force packages the direction and focus became to assess because we were being told that we were using too much force and were to withdraw to re-assess. CM/C stated that he was in possession of an email dated 10 October 2007 that provided direction to staff.

Primary Worker (PW) [name of person] stated that direction regarding going in or not came primarily from CC. During the October 15, 2007 incident direction came from DD. PW [name of person] described that CC would open the door, Inmate Smith would move and he would shut the door without checking on her.

PW [name of person] stated that constant supervision was in place and officers were to withdraw, re-assess, and watch her breathing. Because she was so good at hiding under her gown it was hard to see if she was breathing. As front line officers, she said that “we could see it was getting worse but Managers were giving direction to wait”.

PW Fancey stated that the management direction was initially to go in and cut off ligatures. After we got to know her behaviour, we were to check to see if she was breathing, if she had a ligature and was standing on her bed and was perfectly fine, we didn’t need to go in. We could use OC spray. Give her three direct orders first, open the door, if she didn’t comply, then use the spray. Direction came from EE because she was on the unit and gave this direction herself. After that first weekend when officers used spray a number of times, it was ineffective and the plan changed.

PW Fancey stated that Inmate Smith would tie ligatures, hyperventilate, hold her breath longer and longer. It was getting very scary. She was viewed through the back window and I timed her breaths (10-15 minute). When I hadn’t seen her breathe in over a minute, I said we needed to go in but Michelle Bridgen said no. I went back to the window, couldn’t see her breathe again, it had now been two minutes and I went back to Michelle Bridgen and the other officers agreed that we needed to go in, so Michelle said okay. Michelle Bridgen went into the bubble to relieve an officer.

PW Fancey described another incident (October 9, 2007) when she had to hold inmate Smith’s head after ligatures had been cut off. She was bleeding quite a bit from the nose and her breathing was laboured, she had a sore throat but health care didn’t seem to take it seriously. She heard that Management’s response was they needed to be more vigilant. Health Care didn’t even look in her throat, to see what kind of damage she was doing. Chief Health Services, [name of person] was one of the responders and just checked for breathing. Then she left and sent another nurse in [name of person] to clean up the blood.

PW Fancey understood that the goal when going in was to go in, get the ligature and get out quickly, don’t stay any longer than needed as Inmate Smith thrived on the attention.

PW Fancey stated that if CM Broadbent or MIIS Bridgen were on the unit, sometimes direction would change part way through the shift compared to what the OIC had directed. She provided an example when PW Fancey had trouble determining if she was breathing when under the blanket, so wanted to go in but CC would check and say no, she’s breathing, we don’t need to go in.

PW Dickson informed this Board that she had to enter Inmate Smith’s cell to remove ligatures. On a couple of occasions, she recalled being restrained by Michelle Bridgen (put her hand out in front of me). She stated that she was working in A&D and was called to respond to the max unit. When she arrived, Inmate Smith was at her cell door, and her face was blue and you could see pitichae. PW Dickson put her gloves on and said I’m ready to go. Michelle Bridgen said no, she’s breathing, she’s fine. I was taken aback but moved away, Inmate Smith lay down in front of the cell door. You could hear her laboured breathing. PW Dickson left Segregation and was walking past the gym, when she was radioed back to enter the cell and remove the ligature. On another occasion, CC said Inmate Smith was attention seeking and staff were not to go in. CC told staff to view her through the back window (not easy to see). They negotiated and monitored for a few hours and finally went in after CC had left.

PW Dickson reported that she received direction at shift briefings from CM’s (did not specify who) that if Inmate Smith was still breathing, you are not to enter the cell, because it was considered to be attention seeking behaviour, and we were to stay back and observe. I questioned my Supervisor where this direction came from. The answer was vague, but insinuated that it came from the Deputy Warden and A/Warden. PW Dickson stated that even after DD indicated Inmate Smith was a high suicide risk (Dickson stated this was sometime after the 15 October 2007 Use of Force) the direction didn’t change.

In response to the testimony above, the Board asked CC, MIIS Bridgen, BB and EE if they recalled the aforementioned incidents or any other related discussions with staff.

In response to the testimony above, the Board asked CC, MIIS Bridgen, BB and EE if they recalled the aforementioned incidents or any other related discussions with staff.

This Board asked Ms. Bridgen if she had ever had any conversations of what would be considered medical distress. She stated that knowing “when” they should go in or not was to be a personal choice of the officer’s based on the officers constantly assessing Smith. They were to assess if she was breathing, walking, talking, is the ligature tight and there was no right or wrong. Ms. Bridgen admitted that told staff that this will “test your convictions”. Her explanation for this was that she said this because it is human nature to go in right away and she also explained it would test them because if a staff member was posted for 12 hrs on the Segregation Post and they needed a break because of numerous incidents involving Inmate Smith, that they were no lesser of a guard and they just had to say that they were tired and needed a break. She also told them that if you go in, you need to have a plan and always ensure their own safety and security.

This Board asked Ms. Bridgen if she ever told an officer not to go in to which she replied no.

Ms. Bridgen informed this Board that prior to 04 September 2007 she had been on assignment as the Team Leader of the Max Unit, but from 06 September 2007 she was on assignment as the Manager Intensive Intervention Strategy (MIIS) and had no supervision role of any staff. She provided only advice to staff and not direction. She stated that she never received any feedback from staff. She further stated that no one ever told her whether they liked it or didn’t like it or had any concerns relating to Inmate Smith.

BB and EE professed during their interviews that when to intervene was always left to the officers in segregation to determine. The Board believes the feedback those officers and CM’s were subsequently given did not support them even when they clearly documented the risks associated with her behaviour and the impacts/medical distress that was present (purple/blue colour in face, laboured breathing, blood, swollen face, pitichae).

FINDING C2

That explicit direction was provided to CM’s and PW’s regarding not entering Smith’s cell as long as she was breathing by BB, MIIS Bridgen and CC.

That this direction was based on feedback from EE to the managers above that she believed that excessive force and interventions that were not compliant with the situation management model were occurring with Smith.

That this direction on belief by EE was common knowledge amongst staff and managers at GVI and that EE did not take appropriate action to clarify what she now states was a misunderstanding, miscommunication or misinterpretation of her direction.

That this direction by EE and follow up actions taken by BB, MIIS Bridgen and CC contributed to staff and CM’s belief they were not to go into Smith’s cell as long as she was breathing.

d. Whether managerial obligations, to ensure staff were properly trained, equipped, briefed and supervised in order to perform their primary responsibilities, were fully met.

…

Supervision

A Correctional Manager is assigned to the Secure Unit in a 250 day post during the week to provide constant supervision and guidance to the Primary Worker staff rostered in the Secure Unit. During the evening and weekend shifts, the OIC Correctional Manager is posted to the Correctional Manager’s Duty Office and does provide supervision and guidance during the times when rounds of the Secure Unit are completed throughout the shift or during telephone contact and/or direct interaction with the staff in the Secure Unit.

Prior to 04 September 2007, a Team Leader was assigned to the Secure Unit, however, after 04 September 2007, this position was deleted and the new Manager Intensive Intervention Strategies (MIIS) was created. The MIIS office is located in the Secure Unit, however, since 04 September 2007 there is no direct line reporting relationship to any staff in the Secure Unit.

The Warden and Deputy Warden conducted the required rounds of the Secure Unit and information provided to this Board indicated that during those times the A/Warden would answer direct questions from staff and provide the staff with guidance and feedback on particular issues as required.

…

e. The adequacy and appropriateness of management direction respecting the management of medical emergencies.

CD 800 – Healthcare

To ensure that inmates have access to essential medical, dental and mental health services in keeping with generally accepted community practices.

3. Medical emergency: an injury or condition that poses an immediate threat to a person’s health or life which requires medical intervention.

It was common knowledge amongst managers at GVI including all of the CM’s, the Chief Health services, the senior psychologist, Mrs. Bridgen, BB and EE that Smith’s use of ligatures was escalating following her return to a segregation cell after smashing her television while accommodated briefly (2 days) on the pod.

There are numerous OSOR’s and documentation contained within the Use of Force packages that describe this escalation and the increasingly serious physical harm Smith was inflicting upon her. The risk this behaviour posed escalated to a “very high suicide risk” (see psychological assessment completed by FF dated October 12, 2007) following Smith’s outside court appearance on October 12, 2007.

Staff and managers who were interviewed indicated that senior management (CC, Michelle Bridgen, BB and EE ) made it clear at morning operations meetings, after ops meetings and in one on one interactions that they believed officers needed to withdraw and reassess and not be so quick to use force to remove ligatures if Smith was not in distress. This direction was then passed onto staff (PW’s) and managers (CM’s) via shift briefings.

A review of a number of Use of Force packages corroborates that the A/Warden and DW considered intervening with the Use of Force to remove ligatures when Smith was breathing and talking to be an excessive use of force and non-compliance with the Situation Management model. There are instances where the officers OSOR’s clearly indicate Smith was either not visible to the officers and/or when they did get a visual on her, they saw that she was discoloured (purple face). The officers determined the physical signs they were seeing constituted medical distress and therefore they applied force to remove the ligature.

In the Use of Force packages for September 22, 23 and 30, 2007 the DW and A/Warden did not agree with the officers judgment that Smith was in distress and indicated in their Use of Force comments/memos that they should not have entered the cell and that they should have withdrawn from the cell once Smith interacted or started to fight their efforts to remove the ligatures. This direction was provided verbally and was later confirmed in writing despite the knowledge that Smith was turning purple and had tied the ligatures very tight.

FINDING E1

That Smith’s use of ligatures met the definition of a medical emergency due to the visible impacts her self-injurious behaviour was having on her (discoloration, laboured breathing, pitichae, nose bleeds, swelling of the face and neck) as well as the inherent risk of accidental death associated with engaging in such a high risk behaviour.

That the A/Warden, Deputy Warden, MIIS Bridgen and CC erred in their interpretation of what constituted a medical emergency or medical distress and in the direction they provided staff to not intervene and withdraw/reassess as a result of this error (Use of Force comments, memos and verbal direction). This contravened CD 800/CD 843 and CD 567.

That this misdirection/feedback to staff and managers contributed indirectly and implicitly to the slow response to Smith’s self injurious behaviour on October 15, 2007 and October 19, 2007.

…

g. Compliance with policies, procedures and responsibilities.

A review of the following laws, policies and procedures was carried out to determine whether or not there were any deficiencies in their application by managers at GVI from August 31 to October 19, 2007:

CCRA
CCRR
CD 844	Use of Restraint Equipment for Health Purposes
CD 843	Prevention Management and Response to Suicide and Self Injuries
CD 800	Healthcare (reviewed separately under section e. of report) as per the convening order)
CD 590	Administrative Segregation (previous policy in place during applicable timeframe)
CD 568-1	Recording and Reporting of Security Incidents
CD 567-1	Use of Force
CD 567	Management of Security Incidents
CD 566	Prevention of Security Incidents

…

Ashley Smith displayed very disruptive behaviour throughout her incarceration. She engaged in verbal threats against staff. She displayed assaultive or combative behaviour against staff normally in response or resistance to their attempts to remove ligatures and/or sharps from her possession. She also engaged in assaultive behaviour against staff at GVI by throwing water on them, grabbing at their clothing (sweaters, pant legs) and in one case she inflicted a small cut on a nurse when she tried to grab the nurse’s glasses as she wanted the glass to use as a “sharp”.

Ashley Smith was classified as maximum security and the behaviours above (minor assaults, verbal threats, throwing water and grabbing at Staff) are consistent with a maximum security rating. None of her behaviours were of a serious enough nature to warrant placement on a formal management protocol. None of her behaviours outside of her repetitive self-injurious use of ligatures would warrant long term segregation based on policy.

The question then becomes, did management use the least restrictive measures based on the actual threat she posed, to manage Smith.

Ashley Smith’s personal belongings and basic rights were severely curtailed in order to eliminate inappropriate behaviour such as covering her cell window and camera and to prevent her creation of ligatures.

She is known to have enjoyed writing and drawing but normally she was allowed no paper products such as books, writing paper, magazines or writing instruments as she repeatedly covered her camera and cell. Unfortunately taking away these items did not stop the behaviour, she just found other ways to cover the camera (toothpaste, a sticker from a banana, food, etc). …

A similar approach/system appears to have been in place to deal with her using cell belongings (mattress, gown, blankets) to fashion ligatures. It is noted both in the log book and the management plans that her access to these items was adjusted depending on her behaviour. She was often left in her cell with no mattress, blankets or pillows as a means to reduce or eliminate her use of ligatures. These extreme restrictions however were ultimately ineffective as Smith was allowed to continue to make, wear and use numerous ligatures from her security gown.

Ashley Smith was provided with very little movement outside her cell. …

The rationale provided by staff and managers for these restrictions is based on the overt threat that Ashley Smith posed both to herself and staff. EE indicates she had no idea that toilet paper was being rationed and she depended on Ms. Bridgen to provide operational expertise and guidance on the unit. She stated it would have been CC and Ms. Bridgen who made unit based operational decisions regarding Smith’s access to staff in interview rooms, movement, and cell effects based on her behaviour/risk.

On the evening of September 21, 2007, Smith was residing in the pod area of the secure unit on segregated status. She smashed her TV and in order to move her back to a segregation cell, CC opened her cell, handcuffed her and walked her down to segregation, placed her in Segregation Cell #1, and after her handcuffs were removed numerous pieces of glass were seen to fall out from under her gown. She was later taken to outside hospital for a body cavity search but was able to retain some glass.

Staff tried to provide interaction and social contact by talking to her, playing cards with her through the food slot and reading to her. On Oct 11, 2007, (the day before she was scheduled to attend court and at a time she was deemed a high suicide risk) the psychologist took her in an interview room and made some cards with her, albeit with Ashley Smith handcuffed at the back, so her actual participation was limited.

The most startling contradiction to the need to address the threat Ms. Smith posed by restricting her rights is the repeated lack of searching (cell, frisk and strip searching of her) to remove glass and ligatures when she was actively utilizing them to engage in self harm.

A review of the log books, emails provided by the DW and numerous interviews all confirm that Michelle Bridgen and CC were making decisions and providing direction to staff regarding daily routines for Smith and how to respond to her behaviour. In addition, Primary Workers on the segregation unit appear to have been given the authority to determine what portions of the management plan would/would not be implemented (e.g. taking Smith out to an interview room or yard, providing rewards, such as TV and responding to basic requests for items such as toilet paper) depending on whether or not they judged her behaviour to have been appropriate or not.

In one instance CC does indicate that he informed DW BB of his decision to remove the tiles in Smith’s cell when she began destroying them and threw them at staff. He indicates that the DW supported this decision/action.

Although the management plans developed by the DW and approved by the A/Warden portray a much less restrictive regime, they should have been aware through visits to the segregation unit, ongoing ops briefings, OSOR’s and input from staff and managers that the actual conditions of confinement and operational routine were very restricted.

FINDING G1:

The Board assesses that MIIS Bridgen and CC gave direction to staff regarding conditions of confinement etc. as described, as they were the managers in charge of operations and daily routines on the unit.

It is the board’s opinion that the measures utilized were not always the least restrictive based on the risk presented and that at times they resulted in the “inhumane or degrading treatment” of Ashley Smith. This contravenes sections 4 and 7 of the CCRA and CD 590.7. It was the A/Warden’s responsibility to ensure adherence to policy pertaining to offender Smith’s rights and to ensure adherence to her direction as Institutional Head that was outlined in the management plans.

…

FINDING G3:

The lack of direction from the A/Warden and DW to search Smith, especially after she was deemed a high suicide risk, to remove and limit her access to ligatures, glass and other items she used to engage in self-injurious behaviour while it does not contravene section 48, 49 and 50 allowed Smith to continue to engage in a high risk behaviour which eventually led to her death.

…

FINDING G4

That not all daily psychological suicide risk assessments were completed or documented (no record or notes in the psychological file some days to document 100% compliance) as required by the management plan.

…

That after October 9, 2007 when she was determined to be a high risk for suicide, daily intervention/risk assessments were not documented on October 10, 14, 15 18 in psychological assessments/notes…

…

CD 567 Management of Security Incidents

[excerpts from CD 567 deleted]

The management plans as well as the Use of Force packages (including numerous first hand accounts in the form of OSOR’s, hours of video tape and subsequent comments by the SIO, DW and A/Warden) provide an overview of the application of the Situation Management Model and the approach that was being used to manage Smith’s challenging behaviour and specifically her use of ligatures at GVI.

EE and BB had concerns that the Primary Workers, Nurses and Correctional Managers were not in compliance with either the Situation Management Model or the Use of Force Policy. Their specific concerns as outlined in memos, use of force reviews and inter-personal interactions with staff/managers indicate that “there does not appear to be a need to enter the cell and the staff did not withdraw to re-assess the situation”.

The Situation Management Model provides an excellent tool to deal with outward directed behaviour. Smith certainly met the definitions in the policy of verbally resistive, physically uncooperative and at times assaultive. In describing Smith’s behaviour, staff and managers use the term combative as opposed to assaultive as this behaviour is exhibited almost exclusively within the context of her self-injurious behaviour.

The Situation Management is intended to assist staff and managers in “determining the correct response options to be used in managing security situations”. The repeated reference to the “reassess” portion of the model, in Smith’s case appears to have become the primary focus of the A/Warden as well as the Managers on the secure unit (Michelle Bridgen and CC) and the DW at GVI. This focus was clearly communicated to staff both directly and indirectly. Staff and CM’s communicated that this direction impacted on their ability to respond to Smith’s behaviour from a preservation of life perspective. There existed at GVI an environment whereby the application of the model as directed by the a/n managers was focused more on reassessing than ensuring an immediate response.

FINDING G11

That the CM Secure Unit (CC) TL/MIIS Secure Unit (Michelle Bridgen), BB and EE all provided direction contrary to the SMM by telling staff they had no reason to enter the cell, to remove Smith’s ligatures, as the A/Warden and DW did not concur that she was in distress when there were clear signs she was. This action contravenes CD 567.

…

CD 567-1 Use of force

[excerpt from CD 567-2 deleted]

…

FINDING G13:

That officers were responding within the policy framework (CD 567, CD 567-1, CD’s 800 and 843) to respond to Smith with force in order to remove ligatures to prevent serious self-injury or suicide.

FINDING G14:

That the DW and A/Warden provided misdirection via their Use of Force reviews and corrective action (see September 23, 2007 package specifically) regarding the Situation Management Model to staff who were then tasked with responding to Smith under this shroud of misdirection and fear that they would be disciplined thereby contravening CD 567-1 sections 1 and 2.

…

CONCLUSION

This Board finds that the staff and managers of Grand Valley Institution were dedicated, highly motivated and were not ill intentioned in their management of Ashley Smith. In the weeks leading up to her death GVI was managing several high risk/high needs offenders and Smith stretched their already thin resources to the limit. In addition, the management team was in transition with an acting Warden, acting AWO and acting MIIS.

The Board finds that the leadership provided specifically as it pertains to directing staff in responding to Smith’s use of ligatures was sorely lacking. The communication and direction from the A/Warden, Deputy Warden, MIIS and CM Secure Unite whether explicit or implicit, direct or indirect created an environment of confusion, particularly in the area of whether or not they had the authority to enter Inmate Smith’s cell to remove ligatures.

The Board finds that:

1. Managers breached Standard One of Responsible Discharge of Duties by failing to conform to, or apply to, any relevant legislation. Commissioner’s Directive, Standing Order, or other directive as it related to his or her duty; as outlined in the following findings:
   • EE: Findings B2, B3, E1, G1, G2, G5, G121, G12 and G14
   • BB: Findings B3, E1, G1, G5, G11, G12 and G14
   • Michelle Bridgen: Findings E1, G1 and G11
   • CC: Findings E1, G1 and G11
   • [name of person]: Finding E2
   • FF: Findings G4, G5, G6 and G7
2. That Managers breached Standard One of Responsible Discharge of Duties by neglecting to take, to the utmost of his or her ability, appropriate action when an inmate: c) engages in any action likely to endanger life of property, as outline in the following findings:
   • EE: Findings A3, A4, C2, G3, G11, G12 and G14
   • BB: Findings A3, A4, C2, G3, G11, G12 and G14
   • Michelle Bridgen: Findings C2 and G11
   • CC: Findings C2 and G11

[Sic throughout]

[Emphasis in the original]

83 The grievor received a redacted copy of the investigation report on March 3, 2008 (the above excerpts are from the full version). She prepared a response in the form of an undated memorandum with an attachment and sent it to Ms. Stapleforth. It is dated March 12, 2008. I reproduce the memorandum as follows:

Response to Disciplinary Fact Finding

On March 3, 2008, the disciplinary fact finding was hand delivered to me by [name of person].

I am shocked to learn that the disciplinary fact finding indicates findings against my actions at Grand Valley Institution with regards to the death of Ashley Smith. This is inconsistent with the findings of the National Investigation. Specifically, my Section 13 did not address any policy violations on my part.

As I poured through the package I received, it is evident the disciplinary board did not understand the role of the Manager Intensive Intervention Strategy; rather has confused it with the role of the Assistant Warden of Operations. I feel obliged to identify that the Manager Intensive Intervention Strategy:

• Does not have any line authority over any operational/security staff (Primary Workers or Correctional Managers),
• is not a member of the Senior Management Team;
• does not have any decision making authority with regards to operations/security
• is responsible for facilitating the intensive intervention strategy for the SLE
• is responsible for facilitating the intensive intervention strategy for the Maximum Women to ultimately lower their security level
• has line responsibility for Behavioural Counsellors and functional responsibility for a multi[disciplinary team (composed of Primary Workers, Nurses, Psychologists, Parole Officers and others)

At no time did I assume the duties of the Assistant Warden of Operations, act in this capacity nor was it my responsibility to direct security staff or correctional managers. I did not provide security staff or managers with any direction regarding use of force - this is the responsibility of the Assistant Warden of Operations. In fact, the A/Warden arranged with RHQ to have training on the use of force provided to security staff and correctional managers by Ken Allen from RHQ in October 2007. If staff was uncertain of their obligations in the use of force they would have had the opportunity to bring their concerns forward at the training.

The A/Warden asked me to assist with developing the staff by providing general coaching and mentoring. My recommendations to staff were always clear and concise. I always encouraged staff to intervene when Ashley was in distress; that they were to ensure they had an action plan and that their documentation clearly outlined what transpired.

I was not in the institution from October 12, 2007 until after her death. I was not consulted with regards to the direct observe, high risk suicide risk of Ashley and therefore did not have opportunity to offer guidance. Up until the point of my departure on October 11, 2007, staff were intervening when she was in distress, negotiating ligatures from Ashley when she was not in distress. Staff undoubtedly understood their roles and this was evident in their observation reports and the fact that Ashley was safe.

The death of Ashley Smith is a very tragic event. It has affected me dramatically. I got to know Ashley quite well and grew fond of her; she had a great sense of humour and was really a little girl at heart. Unfortunately, Ashley was a very confused individual. The preservation of her life was my utmost concern. The safety of both staff and Ashley was taken into consideration at all times when I was coaching staff. The ultimate goal was to ensure Ashley remained alive and all were safe. I sincerely regret the death of Ashley Smith. I do not feel that my actions contributed to her death.

I am a dedicated and loyal employee of CSC. Throughout my 24 years, I have assisted the department in times of need, and have gone to help out in institutions outside the Kingston corridor whenever needed. I am proud to say that I have the utmost respect of both staff and senior managers throughout the region.

I implore you to review the job responsibilities of both the MIIS and the Assistant Warden of Operations. I am confident you will find that I had no line authority over any of the correctional staff and many of the responsibilities described in the report are not the responsibility of the MIIS as defined in the organizational structure. I ask that you reconsider the findings and the decision to continue with this disciplinary hearing.

I have attached my response to the disciplinary investigation.

Thank you for your time and consideration.

[Sic throughout]

[Emphasis in the original]

84 I also reproduce relevant parts of the attachment to the grievor's memorandum of March 12, 2008, as follows:

…

The death of Ashley Smith was and is a very tragic event. The management and staff at Grand Valley Institution did their utmost to keep Ashley safe and alive. This was an extremely difficult case to manage and in retrospect, a different approach might have been more effective.

Many years ago, CSC admitted that there needed to be a change in the way we dealt with Women offenders and ultimately closed down the Prison for Women and opened five facilities across the country. This enabled women offenders to stay close to home, family and receive the treatment they needed to become law-abiding citizens. At this time CSC recognized the need to treat women in a holistic manner; that many of them suffer from mental health issues. In 2002, CSC developed a Mental Health Strategy for Women Offenders and Mental Health had continued to be one of our priorities over the past six years. CSC as a department is not yet equipped to deal with offenders like Ashley Smith. CSC does have some Regional Psychiatric Facilities; however if the offender is not willing to voluntarily participate or not deemed to meet the criteria of a Form 1, the individual institutions are required to develop plans and monitor these individuals to the best of their ability.

When institutions began to tire and lose their ability to control Ashley, she was moved around from institution to institution, Region to Region. This was not beneficial to Ashley. She was removed from her familial support, not able to visit with them frequently, having to adjust to new surroundings etc. These decisions to move her throughout the country were made through the Woman Offender Sector. There is an inherent systemic problem with mental health issues that CSC has yet to address.

The organization as a whole is in the midst of a complete restructuring. This began as of September 4, 2007 and continues to be developed to this day. Some staff roles and responsibilities have been greatly affected and there has been an addition of two senior managers within the institutional structure. The Senior Management team did not adequately plan for this change in responsibilities. Grand Valley Institution did not have all its Senior Managers in place. The Warden was an actor in the institution for four months less a day as an interim measure until such time as a full time Warden could be appointed. The Assistant Warden of Operations position was not staffed indeterminately; the Assistant Warden Management Services was moved into the position on assignment effective September 4, 2007. The Assistant Warden Management services position was occupied by an actor who remained consistent from July until this day. There was no Assistant Warden Intervention at the onset; she arrived at the institution to resume her duties on October 15, 2007. The inclusion of these two Assistant Warden positions increased the size of the senior management team as well as enabled the deputy to delegate work according to operations and intervention. These Assistant Wardens are the subject experts in operations and intervention and are ultimately responsible for their department. The Correctional Manager and Team Leader roles are the roles most affected by the change. The Team Leader is now a Manager Assessment and Intervention, Manager of Programs or Manager Intensive Intervention Strategy. This position no longer has direct supervision over the Correctional Managers or any of the correctional officers. This position is to focus on the intervention portion of corrections; programs, parole reports, case management, sentence management, intensive intervention strategy, Correctional Managers are the persons in charge of the operations of the institution, the security functions, and have the direct supervision of line staff.

The report is not based on factual evidence but on hearsay from staff members as well as the opinions of the Board Members. There is no corroborating evidence to substantiate the findings or their veracity.

Overall comments

My determination to go to help out at GCI was two fold. I was very interested in becoming the Warden of GVI and I needed to become reacquainted with women’s corrections and I have a strong sense of loyalty to CSC and provide my assistance in times of need.

Responsibilities as outlined in CD005

The Manager Intensive Intervention Strategy is responsible for the implementation and management of the National Intensive Intervention Strategy in an institution for federally sentenced women. He/she has a line responsibility for Behavioural Counsellors and functional responsibility for a multi-disciplinary team, composed of Primary Workers, Nurses, Psychologists, Parole Officers and others.

The Institutional Management Team in the new structure includes the Warden, Deputy Warden and all Assistant Wardens or equivalents.

The Assistant Wardens are in charge of conveying specific directions. Shift briefings focus on operational situations that require special attention and any non-routine activities that are planned. It is important that units continue to include as many managers (correctional manager and manager assessment intervention and manager intensive intervention strategies) as possible so they can jointly plan the unit’s operations on a daily basis.

Segregation – management of the segregation unit is the responsibility of the Assistant Warden of Operations. This includes daily visit, ensuring access to daily activities, shower, services, etc. Segregation review boards are chaired by the MAI/MIIS or CM for reviews of cases less than 60 days.

Responsibility Matrix – Operations

MAI/MIIS in female facilities has no responsibilities associated with operations.

Responsibility Matrix – Interventions

Management of segregation program/unit – Assistant Warden of Operations

The senior management of GVI did not create a plan to ensure a smooth transition to the new organizational structure. As an interim measure the MIIS did the daily rounds of segregation and the CM was responsible for daily operations. During the week of October 15 – 19, both the MIIS and CM were in Ottawa at a meeting with the WOS to determine the roles and responsibilities of both individuals. Another Correctional Manager was put in charge of the Secure Unit/Segregation for this time period.

["AW/I"] assumed the role of Assistant Warden of Operations September 4, 2007 until November 2007. I was away from the institution from October 11, 2007 until Sunday October 21, 2007 and then again from October 25, 2007 and never returned as I was reassigned. My role as MIIS should not be misconstrued as that of a Senior Manager, I was a Middle Manager, at the same rank and level as all Correctional Managers, the MAI and Manager of Programs. I had no line authority over Correctional Managers let alone Primary Workers. I view my role as a middle manager as one to question and challenge Senior Management in the consultation phase. However, once a decision was made by the Warden, DW or either assistant Warden then I view my role of a middle manager as someone who is to facilitate the direction of senior managers while maintaining the security and safety of both the staff and the offenders.

Finding C2

That explicit direction was provided to CM’s and PW’s regarding not entering Smith’s cell as long as she was breathing by BB, MIIS Bridgen and CC.

That this direction was based on feedback from EE to the managers above that she believed that excessive force and interventions that were not compliant with the situation management model were occurring with Smith.

That this direction on belief by EE was common knowledge amongst staff and managers at GVI and that EE did not take appropriate action to clarify what she now states was a misunderstanding, miscommunication or misinterpretation of her direction.

That this direction by EE and follow up actions taken by BB, MIIS Bridgen and CC contributed to staff and CM’s belief they were not to go into Smith’s cell as long as she was breathing.

Please accept the following points as aggravating/mitigating factors to be considered:

• Often put in a position to provide advice on security/operational issues. This was not my area of responsibility.
• A/Warden gave direction to Correctional Managers regarding open door, assess, if manageable reassess.
• I never gave direction not to go in if breathing; I always spoke in terms of whether or not she was in distress (breathing, walking, talking, moving, etc.) this appeared to be working; OSOR’s following the Saturday that I went in to speak with staff document clearly how they were able to assess and intervene where necessary; securing ligatures from inmate
• As a middle manager, without line authority, I felt obligated to follow the direction of my Senior Managers
• My duty was to convey to staff the direction of Senior Management in a way to ensure that staff met their own obligations under the legislation and that they performed their duties in a safe and secure manner
• Senior psychologist memo dated October 12, 2007 (after my departure from GVI) “I would recommend that an officer be posted outside her cell to ensure that she is breathing since she can be secretive in manipulating ligatures around her neck” – this memo was sent out to all staff (I believe this is when staff began focusing on the breathing only.)

Finding E1

That Smith’s use of ligatures met the definition of a medical emergency due to the visible impacts her self-injurious behaviour was having on her (discoloration, laboured breathing, pitichae, nose bleeds, swelling of the face and neck) as well as the inherent risk of accidental death associated with engaging in such a high risk behaviour.

That the A/Warden, Deputy Warden, MIIS Bridgen and CC erred in their interpretation of what constituted a medical emergency or medical distress and in the direction they provided staff to not intervene and withdraw/reassess as a result of this error (Use of Force comments, memos and verbal direction). This contravened CD 800/CD 843 and CD 567.

Please accept the following points as aggravating/mitigating factors:

• I was never involved in Use of Force reviews, sanctions etc as the MIIS; I did not review the use of force packages, video tapes etc. This would have been the responsibility of the Assistant Warden of Operations, Deputy Warden and A/Warden
• I never issued any memos
• September 22, 2007 I attended the institution under the direction of the ["AW/I"] to provide advice to staff on how to deal with inmate Smith – my talk included: that staff should enter the cell when they felt she was in distress; that they needed to determine whether or not she was in distress, develop a plan of action, execute the plan and to ensure they document everything in their OSOR’s. I spoke with regards to this would test their convictions as it is human nature to want to rush in to assist; however they needed to be sure that she was in distress, that everyone’s safety was accounted for an then to go in. That dealing with her would also test their convictions as it related to their position as an officer; that they were not any less of an officer if they needed a break as 12 hours working in Segregation could be very trying and it was ok to ask for relief or switch posts.
• OSORs completed by staff on September 23, 2007 clearly depict what I spoke to the previous day, noticeably articulating that they understood the message I delivered; therefore indicating there was no confusion with regards to my advice.
• At no time did staff approach me for any further clarification with regards to my advice
• Disciplinary report contradicts itself with regards to the response on October 15^th; it refers to this response as both slow and good
• CD 567 refers to a medical emergency as being an “immediate threat” – having a ligature doesn’t necessarily equate to an immediate threat; there were times where she wore the ligature as a necklace, not tight around her neck but there, tied in a bow on the side of her neck as a choker etc. It was staff who were to assess her to determine whether she was in distress; whether or not a medical emergency existed and then to respond accordingly.
• I was not in the institution when Ashley was determined to be a high suicide risk; where she had developed a plan and was very low.
• I was not consulted with regards to the direct observe, high suicide risk therefore did not have any opportunity to offer and guidance
• Situation Management Model indicates we are to Assess, Reassess, negotiate, intervene before we result to physical handling
• Breach with regards to CD 800, CD 843 and CD 567 as far as I can see relates to the definition of a medical emergency – nowhere does it indicate that ligatures must always be referred to as a medical emergency. The way this inmate used ligatures was not always life threatening.

Findings G1

The Board assesses that MIIS Bridgen and CC gave direction to staff regarding conditions of confinement etc. as described, as they were the managers in charge of operations and daily routines on the unit.

It is the board’s opinion that the measures utilized were not always the least restrictive based on the risk presented and that at times they resulted in the “inhumane or degrading treatment” of Ashley Smith. This contravenes sections 4 and 7 of the CCRA and CD 590.7. It was the A/Warden’s responsibility to ensure adherence to policy pertaining to offender Smith’s rights and to ensure adherence to her direction as Institutional Head that was outlined in the management plans.

Please accept the following points as aggravating/mitigating factors to be considered:

• Suicidal precautions were necessary to provide a safe environment
• Preservation of life is our utmost responsibility as outlined in the CCRA
• One of our strategic priorities is to ensure the safety and security of all offenders and staff
• There were clearly documented concerns about high suicide potential and manipulative behaviour to secure ligatures
• Ashley was capable of destroying her metal desk with her bare hands
• Ashley’s history necessitated the need to utilize these measures to ensure her safety as well as that of the staff’s
• The continued provision of a security gown was an attempt to provide her some degree of dignity
• I asked about the possibility of a paper gown; something that she could not utilize as a ligature if she were to rip it; Paper gowns are not on the scale of issue; they are not readily available to CSC; took some time to find one, tested one we had delivered, it was not a true paper gown, could be twisted and tied even tighter than the material she had
• The Correctional Investigator visited during this time period; to my knowledge the CI did not express any concerns with regards to the conditions of confinement; this information cannot be found in the disciplinary investigation
• I am not aware of any time Ashley expressed concerns to the OCI with regards to her conditions of confinement
• Ultimate responsibility for segregation lies with the Assistant Warden of Operations
• Assistant Warden of Operations never vocalized any concerns with regards to the conditions of confinement
• I did not review the log book, this is not my area of responsibility, therefore was not aware of staff’s non-compliance with the plan
• I worked day shift; generally 0700 – 1600 hrs; there were many other correctional managers who provided direction to staff for 16 hours each day and 24 hours on weekends; I have no way of knowing whether or not they gave conflicting direction. Again, I do not have line authority over the Correctional Managers
• Staff rarely approached me for advice if CC was in the unit
• I would ask input from the PW’s and empower them to make the decisions with regards to the routine for the day; I would ask them what has been working, what has her behaviour been like, is she using ligatures and allow them to develop the daily plan in conjunction with the management plan – this is in compliance with decision making at the lowest level possible
• There is a lot of documentation that demonstrates how she was using toilet paper, floor tiles, towels etc to either cover her windows, camera to obstruct viewing her or make ligatures to continue with her behaviour.
• I took part in a discussion with the A/Warden, DW and [name of person] of NHQ on October 11, 2007 to determine whether or not Ashley should go to outside court in her security gown or personal clothing; I believed my argument with regards to her dignity is what swayed the Warden to decide to let her go to court in her street clothes.

All the measures that were put in place while she was in segregation were to ensure Ashley’s safety, and the preservation of her life. There is great difficulty determining what is more important saving her life, keeping her safe or her dignity. The measures taken, limiting her toilet paper, removing broken tiles, not giving her security pad/blankets, towels to dry off with etc. were all made with the intent to keep her safe. There was never any mal-intent or any intent to infringe upon her dignity. I did not receive any direction from the Assistant Warden of Operations on how to manage this case. It was my responsibility to review the daily log books. I took on the responsibility of completing the daily rounds in segregation as a delegate of the Warden. Every day when I was in the institution I completed these rounds and signed the visitor log book.

Finding G11

That the CM Secure Unit (CC) TL/MIIS Secure Unit (Michelle Bridgen), BB and EE all provided direction contrary to the SMM by telling staff they had no reason to enter the cell, to remove Smith’s ligatures, as the A/Warden and DW did not concur that she was in distress when there were clear signs she was. This action contravenes CD 567.

Please accept the following points as aggravating/mitigating factors to be considered:

• I was not a Team Leader; there is an error in the findings as the disciplinary team is referring to me as both the TL and MIIS; this I believe confirms my belief that they have confused the role of the MIIS
• As the situation escalated staff was encouraged to develop immediate action plans when they arrived in the unit so they could respond quickly. I had these conversations the week prior to my departure on October 11, 2007.
• CD 567 defines a Medical Emergency as an injury or condition that poses an immediate threat to a person’ health or life which requires medical intervention.
• There were many times where Ashley had a ligature but it was not fastened around her neck or tied tightly around her neck. She would stand in front of her window and talk to staff while they tried negotiating the ligature from her. She would tell them it was not tight, she just had it there to feel safe.
• There were many times staff would negotiate the ligature from her without entering the cell
• Each situation needed to be assessed individually. One plan cannot be strictly adhered to when dealing with a suicidal highly emotional individual. The situation will change and evolve into many scenarios depending on the surroundings, staff reaction, shift changes, etc. any minor change in routine, tone could result in different outcomes
• Staff were clearly advised that when they believed Ashley to be in danger that their primary responsibility would be to go in, remove the ligature in order to preserve her life.
• Difficulties with dealing with Ashley was determining whether or not her behaviours were behavioural, psychiatric, a ploy for attention or suicidal.
• In the initial stages, after Ashley’s arrival, she began to respond to DBT. There was a lot of interaction with staff, with Ashley looking forward to rewards for her appropriate behaviours and having a choice in what her activity would be.
• She gave up her last ligature; would watch television, listen to books on tape, etc. She made great strides in comparison to all her previous terms of incarceration. This resulted in the Warden’s decision to move her to the POD.
• There was a lot of consultation with staff, inmates, and senior managers with regards to the move.
• She was very happy in the two days she lived on the POD
• She came out of her cell, took baths, played basketball in the secure unit yard with PW’s, she was laughing, having a good time, joking with staff
• She deteriorated, smashed her TV and was ultimately returned to segregation.
• She had in her possession glass, hidden on her person
• Attempts were made to retrieve the glass; 2 IERT cell extractions, negotiations
• She now had the ability to make her own ligatures.

Although the use of a ligature resulted in her death, not all times when she was in possession of a ligature was there a sense of an immediate threat. During my tenure, the use of ligatures fluctuated with Ashley. I note that there were numerous Uses of Force during the time period of August 31, 2007 until October 19, 2007. The bulk of these uses of force took place on the initial weekend of August 31^st, again on the weekend of September 22^nd, the weekend of September 29^th and then again on the weekend of October 15^th. I can only speak of incidents up until October 11, 2007, while I was present in the institution. She remained on a suicide watch from September 24^th onwards. There were no Use of Force interventions from September 23^rd until September 29^th, and then again from September 30^th until October 8^th and 9^th. There were many days staff was able to negotiate these ligatures from her and leave knowing that Ashley was safe. The advice I gave with regards to the use of ligatures and the determination of whether or not she was in medical distress was consistent with the definition of a medical emergency. Staff did enter the cell when required to do so, removed the ligature and ensured that Ashley was safe.

All my involvement related to Ashley’s management plans was prior to her being assessed as a high risk for suicide. I had no involvement with any plans or direction given to her once assessed as a high risk. When I left the institution on October 11, 2008, Ashley was alive and staff was going in and removing ligatures if she was in distress.

From October 15 – 19, 2007, I was in Ottawa with the Correctional Manager attending a week long working discussion with the WOS to determine our roles and responsibilities as set out in the new organizational structure. Another Correctional Manager was in charge of the Secure Unit and Segregation in our absence.

Conclusion

There is not a day that goes by that I do not think that had I done something different then situation may not have ended the way it did. I spent a lot of time with Ashley Smith and her death has affected me dramatically. This was a very tragic loss of a very young, personable individual who I grew fond of. I take solace in the fact that the two days that she lived on the POD were probably the most happy, joyful times in all of her incarcerated life. In hindsight, a different approach may have been more effective in dealing with an individual like Ashley Smith. This was a very complicated, challenging time for all involved. While other measures may have been more appropriate, the main objective was to keep Ashley alive, keep the staff safe while they were continually entering her cell and trying to maintain a positive productive work environment. I believe I fulfilled my duties well in this very complicated and challenging situation. I do not feel that I did anything to contribute to the tragic death of Ashley. I have confidence that the system will be fair and just.

Annex to response to disciplinary investigation.

I have reviewed the testimonies of the individuals questions with regards to the disciplinary fact finding. I will not be addressing open ended opinions that are reflected in the interviews. They are opinions and should not have been reflected in the report. I will regret them and leave them as that. I will respond to the specific events and encounters where I was present. Please accept this annex as my response to these.

EE

EE indicates that she was unaware that Ashley was not coming out of her cell, “that no one from the Management Team told me she wasn’t being moved”

Everyday during the working week, we would conduct Operational Meetings (OPS) and discuss what was happening with Ashley. Staff was directed to write observation reports about her behaviour daily (at the end of each shift) to recount what happened with Ashley during their tour of duty. Although I do not have access to all the OSORs that were written I can say that each OSOR written about Ashley was discussed at the OPS meetings and then again reviewed more thoroughly at the after OPS meetings. Much of what was conveyed in these OSORs was information reviewed when developing her management plans.

Daily TRA’s were approved by the A/Warden with regards to her movement, how she was to be moved and whether or not she would be moved.

With regards to my role after Sept. 4, 2007 – I was now the MIIS; I had many discussions with the A/Warden regarding this role – I pointed out to her on a number of occasions that I did not have any line authority; that I was comfortable mentoring/coaching staff, offering advice on operational issues as I have many years experience; however I did not have any line authority. She pointed out to me that she did not have any confidence in the DW or the CM, that the institution was sorely lacking expertise in the operational side of the house and that she relied on me to ensure operations were running smoothly especially in the Max. Unit. On numerous occasions I expressed to her that I did not have line authority, but would assist in coaching people but she needed to find a way to develop the strengths of the other managers whether they were Senior Managers of Middle Managers.

Regarding the weekend I was ordered to stay in Kitchener and attend the institution. My argument with her (on the telephone) and A/Warden GG was that I was not a Senior Manager, I did not have line authority over the Correctional Managers and that my attending the institution would undermine the authority of the OIC. The only think I could do was offer support to the OIC and coaching and guidance to that of the staff. The two of them were in agreement that I stay and GG ordered me to stay in Kitchener. When she returned to Kitchener on Monday, I met with her again and indicated that I was not called in to assist the OIC with any interventions with Ashley. I indicated I went in later in the morning on the Saturday (the DW called me and asked me to go in). Staff was exhausted and frustrated with dealing with Ashley all morning. I brought in coffee and donuts and took them into the program room to discuss the events that took place, their course of action for further encounters and let them know it was ok to be human, to feel frustrated, to ask for relief etc if they couldn’t handle it anymore. Staff thanked me for coming in, the CM thanked me and I left. I was told to go in for a few hours again on Sunday. When I attended the institution on the Sunday Ashley was sleeping and remained sleeping for the entire time I was there.

EE indicates she was not aware of the limiting of toilet paper. I am sure she was aware of this. There was much discussion in after OPS meetings about Ashley using the toilet paper to cover the camera and windows. I am almost positive the A/Warden referred to her time at Millhaven Institution whereby there were numerous occasions they had to limit the amounts of toilet paper to ensure inmate safety. I am sure she like myself were unaware that the staff was limiting the amount to two squares or not giving it to her when she asked for it until she uncovered her camera.

…

GG

GG comments that strategies for weekend management took place generally on Friday; I typically did not work on Friday as I worked a compressed work week.

GG's comments with regards to my dedication to the institution are uncalled for and truly unprofessional. My assignment to Grand Valley Institution was as the Manager Intensive Intervention Strategy. This assignment did not necessitate the need for me to be in Kitchener over the weekends. I was removed from my family during the work week and very much wanted to be home with my husband and children on the weekends. Senior Management at GVI had full knowledge of my regional responsibility of being the Regional Duty Officer (once every 5 weeks). The weekend in which he ordered me to stay was a weekend that we had planned a full family camping trip. By full family I mean all six of my children, two of their spouses, my two grandchildren and my husband. This was our end of season trip that all were longing for. To have to call my family and tell them that I could not attend as I was being ordered to stay in Kitchener in case there may be a need was very difficult.

FF

I met with FF practically daily. We would discuss Ashley’s case and try to develop alternatives to address her issues. Many of these meetings were held in the Secure Unit and many of them in my office in the Secure Unit. Psychologist Wilma Stern-Cavalcante took part in many of these discussions as well.

Heather Magee

I recall the incident where I was on the segregation range and CM Magee was there to determine whether or not there was a need to go into Ashley’s cell. Staff did not have a velar visual on Ashley as she was between the bed and the cell door. When they opened the door, Ashley told them to get out, talked clearly, wasn’t having difficulty breathing and was agitated. I indicated at this time that they should not go in but continue to monitor and develop a plan of action to ensure everyone’s safety. I stayed with the staff on the range until such time as a plan was developed and staff entered the cell, removed the ligature and Ashley was safe.

All Correctional Managers have a responsibility of duty of care, cell conditions, standards and all would have input at one time or another. I was on site during the working day Monday to Thursday. I did not have the responsibility of Segregation nor did I have any line authority over staff. The OIC was the person ultimately in charge of any shift. The remainder of the time the OIC was in charge of the institution which included the Secure Unit and Segregation.

Angie Fancey

I remember being in the unit as management presence on this evening. This was one of the days that A was conducting his Use of Force training. At the time when PW Fancey was having difficulty seeing Ashley; A came in to the unit with CM Broadbent. I asked PW Fancey if she could take A out to the outside window to observe; A said he would not go with her that that was not why he was there. PW Fancey indicated she was having difficulty seeing Ashley; I asked her to use all alternative measures to check on her (though the rear window, food slot, cracking the door). Others were in the area and between all determined that Ashley was in distress. I relieved the control post so that there were enough officers to respond and CM Broadbent assisted the officers in the response. The ligature was removed and Ashley then went to sleep for the evening.

[name of person]

Toilet paper was given to Ashley on a need be basis. A full roll of toilet paper was not allowed in the cell as Ashley was using the paper to cover her camera and/or window. Ashley was allowed to have toilet paper when she needed it. At no time did I give direction to give two squares only and not to record this in the log book. As the disciplinary team indicates; there are many notations with regards to the amount of toilet paper in the log book. (I did not receive a copy of these log book entries in my package to refer to)

With regards to using another security gown as a towel; this is clearly documented in the management plans.

I never gave direction to charge her for coloring on the walls; I was not in agreement with giving any charges to Ashley while she was in this time of turmoil.

Nancy Dickson

Primary Worker Dickson’s testimony is very confusing to me. I believe she is intermingling many responses with Smith. PW Dickson refers to not really knowing me as I was new. It is hard to pinpoint which incident she is referring to and whether or not it was during the time in question or her previous term at GVI.

There was only one occasion where I was involved and witnessed Ashley purple in colour and this was on an evening shift when I was Management Presence and Primary Worker [name of person] was I/C of Segregation. On that instance, he indicated he believed she was in distress and the staff went in and removed the ligature. PW Dickson was not on that evening, she was accommodated to day shift.

Whenever I was asked my opinion on whether they should be going in, I would offer my opinion as well as my rationale. If I told an officer not to go in, it was either not safe or that I didn’t believe Ashley to be in distress. I would then remain with the staff and continue to monitor until it could be determined that Ashley was safe and that there was no longer a ligature around her neck.

[Sic throughout]

F. Discipline

85 Ms. Stapleforth, in regional headquarters, testified that she received the investigation report prepared by Ms. Lepage and Ms. Lajoie on or about February 25, 2008 and reviewed it with other staff, including human resources. She concluded that the findings in the report required consideration of discipline and a decision was made to proceed to disciplinary hearings. The required notices were sent out to the grievor and other members of management. She agreed in cross-examination that she relied heavily on the investigation report of Ms. Lepage and Ms. Lajoie and she expected them to conduct a proper investigation.

86 The disciplinary hearing with the grievor took place in Kingston in April 2008. Attending were Ms. Stapleforth, the grievor and a person who accompanied the grievor. Originally a member of management agreed to accompany the grievor but that person withdrew after advising the grievor that there was a conflict of interest. Another person then went with the grievor to the hearing.

87 Ms. Stapleforth testified that the hearing was conducted by her and she primarily reviewed the finding of the investigation report with the grievor. As above, the grievor had prepared a response to the investigation report, dated March 12, 2008, and Ms. Stapleforth discussed that document with the grievor as well. The statements by Ms. Magee, Ms. Dickson and Ms. Fancey, as recorded in the report, were discussed. According to Ms. Stapleforth, the grievor disagreed with the findings of the investigation report and the statements of the three correctional officers.

88 In her evidence, the grievor described the disciplinary hearing as Ms. Stapleforth asking her questions about the findings of the investigation of Ms. Lepage and Ms. Lajoie. She was asked whether she agreed or disagreed with those findings. An example used by the grievor was the finding that she did not understand "medical emergency". She explained in her evidence how she demonstrated to Ms. Stapleforth situations where there would be such an emergency and ones where there was no emergency. For example, if a ligature was loosely tied, with the knot on the chest of Ms. Smith, there was no medical emergency.

89 Ms. Stapleforth testified that, after the disciplinary hearing, she concluded that some discipline was warranted in the case of the grievor (others were also disciplined). The concern was that management, including the grievor, had said to staff not to go into Ms. Smith's cell and remove ligatures.

90 There was an issue about whether Ms. Smith was breathing or not before staff entered her cell. Three witnesses had given "quite consistent" information, in the words of Ms. Stapleforth, that the grievor had told staff to not enter the cell (or to leave the cell) if Ms. Smith was breathing; if she is breathing she "is fine", again in Ms. Stapleforth's words. Further, staff explained that they did not believe they could determine if Ms. Smith was breathing in some cases without entering the cell but direction from members of management, including the grievor, made staff hesitant about entering. Ms. Stapleforth explained in her evidence that she looked at the videos, she noticed discolouration of Ms. Smith's face and "I certainly could not decide whether she was breathing." The result of the direction from the grievor was a "lengthy delay" going into Ms. Smith's cell. Ms. Stapleforth concluded that the directions from management not to enter, or that it was not necessary to enter, were not appropriate directions and they did not take into account the medical condition of Ms. Smith.

91 According to Ms. Stapleforth, this was contrary to the respondent's policies with respect to suicides and self-injurious behaviour of inmates and, specifically, the grievor erred in interpreting what was a "medical emergency." As above, the respondent's policies (CD 567, CD 800 and CD 843) all have the same definition of "medical emergency." It includes the preservation of life over other considerations and the policies make it necessary to intervene in the case of a medical emergency. The grievor believed that Ms. Smith "… was breathing, so fine", according to the evidence of Ms. Stapleforth. However, there was other information about her being in medical distress including discolouration of the face, gasping and staff could not hear Ms. Smith breathing at times. In addition, Ms. Smith could not be seen at all times because she hid under the door or under her bed or was lying prone on the floor. Ms. Stapleforth concluded that the appropriate response in cases of medical emergencies was to enter the cell and remove the ligature.

92 After consulting with human resources and other staff, Ms. Stapleforth concluded that a 20-day suspension was an appropriate penalty in the case of the grievor. This decision was communicated to the grievor in a letter dated May 5, 2008 as follows,

…

The purpose of this letter is to advise you of the outcome of the disciplinary process concerning your role in the incident surrounding the death of inmate Smith at Grand Valley Institution (GVI) on the morning of October 19^th, 2007.

I have carefully considered the evidentiary information regarding the above incident and concur with the disciplinary investigation report and its findings including your failure to comply with numerous Commissioners’ directives (CD).

I am of the view that in your role as Manager Intensive Intervention Strategies (MIIS), you provided Correctional Managers and Primary Workers with explicit direction not to enter the cell of an inmate on high suicide watch, as long as she was breathing/talking and that this contributed to their confusion as to when interventions were required with inmate Smith.

You erred in the interpretation of what constituted a medical emergency or medical distress. The direction you provided to staff not to intervene and to withdraw/reassess contravened CD 800, CD 843 and CD 567. I believe that the misdirection you provided to employees and managers contributed to the slow response to the inmate’s self injurious behaviour on October 15^th, and 19^th, 2007.

In determining the appropriate disciplinary measure, I have taken into consideration the information gathered during the disciplinary investigation process and the subsequent disciplinary hearing on March 19^th, 2008. I have considered the fact that you were not present at GVI during the incident on October 19^th, 2007, and during the period before, when inmate Smith was identified as a high suicide risk. I have also considered your long service with the Correctional Service of Canada (CSC), your past performance and your cooperation during the investigation.

The behaviour that you have demonstrated is incompatible with the expected conduct of a manager with CSC. Therefore pursuant to paragraph 12(1)(c) of the Financial Administration Act and the authority delegated to me by the Commissioner, I am suspending you for twenty (20) days, without pay, effective the close of business, May 5^th, 2008.

Should you believe that the disciplinary action is unwarranted, you have the right to grieve the decision in accordance with the Public Service Labour Relations Act.

93 Ms. Stapleforth, in her evidence, explained some parts of this letter. With respect to the reference in the second paragraph to the grievor's position as MIIS, Ms. Stapleforth stated that the grievor had management responsibility to direct staff but the direction was not to enter Ms. Smith's cell even though she was on a "high suicide watch". The grievor was not at GVI on the day of the death of Ms. Smith but a suicide watch means an inmate is kept in isolation and under constant observation for her own protection. Ms. Stapleforth was not cross-examined about the reference to the MIIS position in the letter.

94 In her evidence Ms. Stapleforth discussed the sentence in paragraph 4 of the May 5, 2008 letter that states, "I believe that the misdirection you provided to employees and managers contributed to the slow response to the inmate's [Ms. Smith's] self-injurious behaviour on October 15, and 19, 2007." By "misdirection" Ms. Stapleforth stated that she was referring to her concerns about what she considered errors in applying the respondent's policies, as discussed above. With regards to "slow response", Ms. Stapleforth testified that she looked at all the information and "[w]hat emerges is that, over time, staff had become concerned about management direction" to staff that they were going into Ms. Smith's cell too soon and using excessive force. This caused staff "… to question their actions" and it caused delay going into the cell because they were "concerned there might be discipline." According to Ms. Stapleforth, in two videos there was "clearly a lengthy delay" by staff while Ms. Smith was lying on the floor with a ligature on her neck and it could not be determined if she was breathing; "[t]hat went on for a very long time."

95 In the fifth paragraph of the May 5, 2008 letter there is a reference to the grievor's long service in the correctional service with no previous discipline. Ms. Stapleforth testified that she was aware that the grievor was not at GVI the last week of Ms. Smith's life (including October 15 and 19, 2007). Similarly, she was not at GVI when a psychological assessment of Ms. Smith concluded that Ms. Smith believed that her life was hopeless and she had nothing to live for. However, Ms. Stapleforth looked at the "totality of the evidence" including the grievor's statements at the disciplinary hearing, the documents and the information of other employees.

96 As reflected in the sixth paragraph of the letter, the respondent's decision was to impose a 20-day suspension on the grievor. According to Ms. Stapleforth, the grievor's misdirection to staff created a "very serious situation." Ms. Stapleforth was "extremely concerned" that, despite a medical emergency, staff had been directed not to enter Ms. Smith's cell. This direction was "wrong" and "inexplicable." After consulting with human resources staff, a decision was made that a 20-day suspension was appropriate.

97 In cross-examination Ms. Stapleforth was asked about a document of the respondent titled "A Guide to Staff Discipline and Non-Disciplinary Demotion or Termination of Employment for Cause". Ms. Stapleforth was aware of this document. She was not sure it was correct but she did not believe there was a newer version than November 1994, the one in evidence. She agreed that the investigation by Ms. Lepage and Ms. Lajoie was the "Disciplinary Interview/Hearing" referred to in section D of the discipline guide. She agreed that the grievor had first seen the investigation report of Ms. Lepage and Ms. Lajoie on March 3, 2008. Ms. Stapleforth also said that the grievor disagreed with the statements of witnesses interviewed for that investigation and said so at the disciplinary hearing.

98 Ms. Stapleforth agreed in cross-examination that the section of the discipline guide titled "Steps in the Disciplinary Process" were the steps to be followed, that employees were entitled to procedural fairness, that specific allegations should be put to employees, that hearsay was not the best type of evidence and that a disciplinary investigation should be completed as quickly as possible after information is available. As set out in the document (section 4), it was similarly important for the employee to be "advised of the exact nature of the allegations" and to "formulate" the appropriate questions. Ms. Stapleforth could not say if the questions asked by Ms. Lepage and Ms. Lajoie had been destroyed or retained. Ms. Stapleforth agreed that, as set out in the discipline guide, an employee had a "right to respond to, and provide any information about, allegations" made against her and the investigation was to "obtain facts by hearing the employee's side."

99 Section 4(h) of the guide states that "All relevant statements from witnesses and the employee should be documented and, if possible, signed and dated by the person making the statement." Ms. Stapleforth could not recall if the statements of witnesses were signed in this case but when she was taken to them she agreed they were not signed. The statements were included as part of the narrative of the report. She was asked about section 2(d) of the guide that says "any new or contradictory evidence should be investigated and the findings documented" and it was suggested to her that there was contradictory evidence in the form of the statements of Ms. Magee, Ms. Dickson and Ms. Fancey. To this Ms. Stapleforth replied that their statements were not new and the grievor had described them in her March 2008 memorandum. With respect to the grievor's memorandum of March 12, 2008, Ms. Stapleforth stated that she had reviewed it and discussed it with the grievor at the disciplinary hearing. She denied that further investigation was necessary as a result of the memorandum and stated it was sufficient to rely on the report by Ms. Lepage and Ms. Lajoie and other material. Ms. Stapleforth found all the material "persuasive."

100 With regard to the information recorded in the investigation report by Ms. Lepage and Ms. Lajoie, Ms. Stapleforth denied that a reference in the statement of Ms. Magee to "confusion among staff" was hearsay. She agreed that there was no date recorded for the incidents described by Ms. Magee, Ms. Dickson and Ms. Fancey and she agreed at one point that it was not possible to know whether there were three incidents or less than three incidents because Ms. Magee and Ms. Fancey might have been describing the same incident. Ms. Stapleforth did not speak to Ms. Magee, Ms. Dickson and Ms. Fancey as part of her disciplinary process.

101 Ms. Stapleforth was asked in cross-examination about the discipline letter of May 5, 2008. She could not recall the specific dates when Ms. Smith was put on suicide watch and then high suicide watch but she agreed that high suicide watch meant significant response levels. She agreed that none of the people who were interviewed by Ms. Lepage and Ms. Lajoie were at work on October 19, 2007, the day Ms. Smith died. It was suggested to Ms. Stapleforth that there was no evidence that the grievor's directions to staff impacted their conduct on October 19, 2007 and she answered that the grievor's "directions given over time were a factor." Further, there was a "consistent pattern" of managers telling staff not to enter Ms. Smith's cell, that they should "withdraw and re-assess." Ms. Stapleforth agreed that she could not say what influenced staff at work in the secure unit on October 19, 2007.

102 The training session with AA, from regional headquarters, was also discussed with Ms. Stapleforth in cross-examination. She was directed to a statement in the notes of Ms. Fancey's interview with Ms. Lepage and Ms. Lajoie that "… [AA] indicated that there were too many uses of force and told them [staff] unless we saw she wasn't breathing, don't enter." As well, another interviewee said that AA told staff during a training session that GVI used more force than a maximum institution such as Millhaven Penitentiary and that Ms. Smith "… will die by misadventure." Ms. Stapleforth agreed this was said by AA, this was "his viewpoint" and it "may have" contributed to confusion among staff. AA was not disciplined. Ms. Stapleforth agreed that she was a defendant (among others) to a court action commenced by the family of Ms. Smith. She was asked about various statements in a Statement of Defense filed on her behalf and she replied they represented the position of the respondent in the litigation.

103 As above, a number of other employees were disciplined as a result of the death of Ms. Smith. The following is a list, provided by counsel, of employees other than the grievor, who were disciplined as a result of the death of Ms. Smith. As discussed above, for privacy reasons, I have anonymized their names by the use of "M", "N" and so on. The list also reflects the respondent's initial discipline against these individuals and then the "final" discipline following events such as changes made during the grievance procedure. I was given no evidence about the individual circumstances of each of these other employees, including particulars about why discipline was changed for any of these individuals. The list is as follows:

Employee	Initial Discipline	Final Discipline
"M"	Termination	Demotion
"N"	20-day financial penalty	Discipline removed
"O"	Written reprimand	Removed from file
"P"	Termination	Termination
"Q"	Termination	Reinstatement
"R"	Termination	20-day suspension
"S"	Termination	Resignation
"T"	Termination	Reinstatement (no discipline)
"U"	60-day suspension	15-day suspension
"V"	60-day suspension	15-day suspension
"W"	60-day suspension	15-day suspension
"X"	60-day suspension	15-day suspension
"Y"	10-day suspension	10-day suspension
"Z"	Demotion	Demotion

Counsel advises that some of these employees held equivalent or more senior positions than the grievor in October 2007 and some were on duty in the segregation unit when Ms. Smith died on October 19, 2007. Others were not on duty that day and some are primary workers.

IV. Analysis

104 I begin by emphasizing that this adjudication relates to whether the respondent had just cause to discipline the grievor, and if so, what level of discipline is appropriate in the circumstances. It is not about the cause of death of Ms. Smith on October 19, 2007 or otherwise about the events on that day. Nor is it about any responsibility other employees may have had for the death of Ms. Smith or the events leading up to that event.

105 I will proceed on the usual basis for adjudicating issues of discipline by considering three questions (Wm. Scott & Company Ltd. and Canadian Food and Allied Workers Union, Local P-162 [1977] 1 CLRBR 1): was there misconduct by the grievor? if there was misconduct, was the 20-day suspension imposed by the respondent an appropriate penalty in the circumstances? if the 20-day suspension is not appropriate, what alternate penalty is just and equitable in the circumstances?

A. Was there misconduct?

106 As general context for considering what is misconduct among correctional officers, the authorities are clear that correctional officers are to be held to a higher standard of conduct than employees who do other work (McKenzie v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 26, at para 80). The reason for this higher standard is because "[p]ersons who join the corrections service know that more is expected of them by their employer than would be expected of employees in other occupations" (Re Govt. of the Province of British Columbia v. B.C. Government Employees' Union (Larry Williams Grievance), [1985] B.C.C.A.A.A. No. 26 (Chertkow) (QL); cited in Government of British Columbia v. British Columbia Government and Service Employees' Union (Jaye Grievance), [1997] B.C.C.A.A.A. No. 813 (Hope), at para 28 (QL)).

107 According to the respondent, there was just cause for the discipline of the grievor for the following reasons, taken from the discipline letter of May 5, 2008 from Ms. Stapleforth to the grievor:

…

I am of the view that in your role as Manager Intensive Intervention Strategies (MIIS), you provided Correctional Managers and Primary Workers with explicit direction not to enter the cell of an inmate on high suicide watch, as long as she was breathing/talking and that this contributed to their confusion as to when interventions were required with inmate Smith.

You erred in the interpretation of what constituted a medical emergency or medical distress. The direction you provided to staff not to intervene and to withdraw/reassess contravened CD 800, CD 843 and CD 567. I believe that the misdirection you provided to employees and managers contributed to the slow response to the inmate’s self injurious behaviour on October 15^th, and 19^th, 2007.

…

108 It is submitted on behalf of the grievor that there are a number of problems with this document. Some of these void the discipline in its entirety, according to this submission. I will review these issues. At the end of this section I will also summarize the issue of whether there was misconduct on the part of the grievor.

1. What was said?

109 A critical issue is whether the grievor said the things alleged by the respondent. If the grievor did not make the statements alleged by the respondent then, in the circumstances of this case, there is no basis for any discipline. The respondent has provided three witnesses to support its position that the grievor gave misdirection to staff. The details of their evidence, as well as that of the grievor, are above and I will review that evidence here.

110 Ms. Dickson, a correctional officer, testified that she worked at GVI in discharge and admissions rather than in the segregation unit. From time to time, she was called to the segregation unit to assist other officers when they were preparing to enter Ms. Smith's cell to remove ligatures. On one occasion, Ms. Smith was having difficulty breathing, her face was discoloured and her eyes were protruding. The grievor was also there. According to Ms. Dickson, just before the team entered the cell, the grievor put her arm out and told the officers that Ms. Smith was still breathing and not to go in. Ms. Dickson testified she was frustrated, she said something "inappropriate" and she left the unit. Less than a minute later she was called back into the unit to enter the cell with other officers and remove the ligature from Ms. Smith's neck.

111 In her evidence the grievor said that she "did not recall the circumstances the way [Ms. Dickson] described them" and the grievor thought Ms. Dickson was "talking about a number of situations." This is consistent with what the grievor said in her written statement of March 12, 2008. That statement included the following,

Whenever I was asked my opinion on whether they should be going in, I would offer my opinion as well as my rationale. If I told an officer not to go in, it was either not safe or that I didn’t believe Ashley to be in distress. I would then remain with the staff and continue to monitor until it could be determined that Ashley was safe and that there was no longer a ligature around her neck.

112 As discussed above Ms. Lepage and Ms. Lajoie took notes of what witnesses said to them during their investigation. In the notes for Ms. Dickson she is recorded as saying that "on a couple of occasions I was restrained [by the grievor] (put her hand in front of me)" from entering Ms. Smith's cell. As well, "Ms. Dickson put her gloves on and said I'm ready to go. [The grievor] said no, she's breathing, she's fine."

113 I conclude from this evidence that Ms. Dickson has the clearer memory of what happened. She recalled the events of being called to segregation, being stopped by the grievor from entering the cell, leaving segregation and then returning to enter the cell. On the other hand the grievor's evidence was she "did not recall the circumstances the way" Ms. Dickson recalled them and thought that Ms. Dickson was referring to more than one time. Ms. Dickson is recorded as saying to the investigators that there was more than one time but she was clear in her evidence about one specific incident.

114 In my view, there is some equivocation in the grievor's evidence. As well, the grievor's March 2008 written reply to Ms. Dickson's statement to the investigation (conducted by Ms. Lepage and Ms. Lajoie) includes a reference to telling "an officer not to go in". The reason she would do that was because Ms. Smith was not in distress or it was not safe to go in. This also does not contradict the evidence of Ms. Dickson and, indeed, it leaves open the situation described by her. Finally, according to the notes taken by Ms. Lepage and Ms. Lajoie, during their investigation, the grievor was asked if she had ever told staff not to go in to Ms. Smith's cell as long as she was breathing. The grievor's answer was "… yes, but not by itself." This too leaves open the correctness of Ms. Dickson's evidence.

115 I turn next to the evidence of Ms. Magee, another witness for the respondent. She was a correctional manager at GVI, she worked with the grievor there and they each had supervisory responsibilities over primary workers, at least while the grievor was a team leader. Ms. Magee was aware of the difficulties with Ms. Smith and her unpredictable behaviour but she was not usually part of the team that entered the cell of Ms. Smith. On one occasion, a day shift, the grievor was a team leader and Ms. Magee testified that the grievor "was in charge of the secure unit." A team was just about to enter Ms. Smith's cell to remove a ligature, the door to the cell was open and then the grievor came into the unit. The grievor directed the staff not to go into the cell because Ms. Smith was still breathing. Someone closed the cell door and the team started to disperse. While standing outside the cell door with the grievor, Ms. Magee could hear Ms. Smith gasping for air and Ms. Magee told the grievor that she was calling the team back to enter the cell. The grievor replied, "It's your shift." Ms. Magee used her radio and also yelled to get the team back together. They then entered the cell and removed the ligature.

116 In the notes by Ms. Lepage and Ms. Lajoie, Ms. Magee is recorded as saying that "on one occasion" "she was called to the Max Unit and [the grievor] told everyone 'out out' because [Ms. Smith] was still breathing." The notes continue that "[o]n another occasion [Ms. Magee] recalls receiving a call while she was [officer in charge] and she attended the Unit." The officers could not see Ms. Smith in the cell so Ms. Magee "gave the order to enter the cell. The staff went in the cell "… and then [the grievor] told them to get out and stated 'she's breathing, she's fine'."

117 The grievor's evidence in this adjudication, as it relates to Ms. Magee's description of events, was limited to answering a question about whether the incident was used in the disciplinary investigation conducted by Ms. Stapleforth. The grievor could not recall. The grievor did comment on Ms. Magee's description in her March 12, 2008 memo as follows:

…

I recall the incident where I was on the segregation range and CM Magee was there to determine whether or not there was a need to go into Ashley’s cell. Staff did not have a clear visual on Ashley as she was between the bed and the cell door. When they opened the door, Ashley told them to get out, talked clearly, wasn’t having difficulty breathing and was agitated. I indicated at this time that they should not go in but continue to monitor and develop a plan of action to ensure everyone’s safety. I stayed with the staff on the range until such time as a plan was developed and staff entered the cell, removed the ligature and Ashley was safe.

All Correctional Managers have a responsibility of duty of care, cell conditions, standards and all would have input at one time or another. I was on site during the working day Monday to Thursday. I did not have the responsibility of Segregation nor did I have any line authority over staff. The OIC was the person ultimately in charge of any shift. The remainder of the time the OIC was in charge of the institution which included the Secure Unit and Segregation.

[Sic throughout]

118 This document is in evidence but the contents are not part of the grievor's sworn evidence. I note the written statement by the grievor, that she essentially had no responsibility for the segregation unit, is contradictory to the other evidence that a team leader, prior to October 2007, had considerable responsibility. Her own evidence was to this effect. For example, with regards to the evidence of an incident involving Ms. Fancey (see below), the grievor said she was the "management presence" on that shift.

119 I also note in the grievor's statement that there is no dispute that she directed the staff not to go in or, on her account, to withdraw. Nor is there a dispute that the grievor believed that Ms. Smith was breathing so the team should withdraw. What is in dispute is whether Ms. Smith was breathing or, in terms of the respondent's policies, whether there was a medical emergency. Ms. Magee, an experienced correctional manager, and her team believed there was an emergency and they would have gone in save for the intervention of the grievor. According to the grievor's statement there was no problem, the team withdrew, they made another plan and then they went back in. I conclude from this that there was an emergency and the difference between Ms. Magee and the grievor is one of timing. The team believed there was a medical emergency and the grievor did not. More precisely, the grievor did not believe there was one at the beginning of the incident but, according to her own statement, after her own reassessment she came to the same conclusion as her colleagues.

120 The third witness for the respondent was Ms. Fancey. She worked as a correctional officer in the secure unit at GVI, she had extensive experience with Ms. Smith and she had been part of a team that entered Ms. Smith's cell a number of previous times to remove ligatures. Ms. Fancey knew the grievor because the latter was a team leader with responsibility for the secure unit.

121 On one occasion Ms. Fancey was the close observe officer on Ms. Smith's cell. It was not possible to get an adequate view of Ms. Smith in her cell from the range (through the cell door) because she had hidden herself somewhere in the cell. Ms. Fancey could hear Ms. Smith taking deep breaths and gasping. Ms. Fancey went to the rear window (outside, at the rear of the cell) but she could still not get a clear view. At this point Ms. Fancey gathered a team to enter the cell. The grievor was also on the range and she told Ms. Fancey not to enter the cell because Ms. Smith was still breathing. They did not go in and they started measuring the breaths of Ms. Smith. At one point the breaths were two minutes apart and, according to Ms. Fancey, the grievor still did not direct the team to enter the cell. Eventually, the grievor obtained the key to the cell, the team entered the cell and they removed a ligature from the neck of Ms. Smith. Ms. Fancey noticed a small drop of blood on Ms. Smith's gown.

122 In her evidence the grievor testified that she recalled this incident and that Ms. Fancey was "having difficulty deciding whether to go in" Ms. Smith's cell. A person from regional headquarters was on the range at this time, AA, and someone (possibly the grievor) proposed that he become involved. In may be recalled that AA had been critical in a training session about how staff were managing Ms. Smith, including what he considered excessive use of force. AA declined to become involved, according to the grievor. She then directed Ms. Fancey to try and observe Ms. Smith. The notes taken by Ms. Lepage and Ms. Lajoie about what Ms. Fancey said to them record Ms. Fancey saying "[i]t was getting very scary … Haven't seen her breath in over a minute … We need to go in but [the grievor] said no."

123 In her written statement of March 12, 2008, the grievor said as follows:

I remember being in the unit as management presence on this evening. This was one of the days that AA was conducting his Use of Force training. At the time when PW Fancey was having difficulty seeing Ashley; AA came in to the unit with CM Broadbent. I asked PW Fancey if she could take Mr. AA out to the outside window to observe; Mr. AA said he would not go with her that that was not why he was there. PW Fancey indicated she was having difficulty seeing Ashley; I asked her to use all alternative measures to check on her (though the rear window, food slot, cracking the door). Others were in the area and between all determined that Ashley was in distress. I relieved the control post so that there were enough officers to respond and CM Broadbent assisted the officers in the response. The ligature was removed and Ashley then went to sleep for the evening.

[Sic throughout]

124 It appears to be agreed that there was a problem with getting a reliable observation of Ms. Smith and ultimately the team did go in the cell. However, in her evidence the grievor stated that Ms. Fancey was having difficulty deciding whether to enter the cell. That statement is not made in the March 2008 written statement, about six months after the death of Ms. Smith. I find that the situation was as described in the grievor's written statement and in Ms. Fancey's evidence: the difficulty Ms. Fancey was having was getting a clear view of Ms. Smith. Ms. Fancey was not having difficulty deciding whether to enter the cell. Indeed, she had made the decision to enter with her colleagues, and they would have entered the cell earlier if not for the intervention of the grievor.

125 It is submitted on behalf of the grievor that the evidence of Ms. Dickson, Ms. Magee and Ms. Fancey are unreliable and should be given no weight or dismissed outright on a number of grounds. I will deal with one of those grounds here and the others below.

126 It is true that none of the three witnesses could be specific about the date of the incidents they were describing. However, Ms. Dickson was clear that it occurred before the death of Ms. Smith. Ms. Dickson also pointed out that five years or more have passed since the incident and she could not remember dates that far back. Ms. Magee recalled it was a day shift and she also commented about the passage of five years since fall 2007 (although in the context of the training session with AA) and she was clear that the incident she described occurred while the grievor was a team leader. She was asked if she was confusing one event with another and she answered that the "… incident [with the grievor] stands out in my mind because it was the first time I had ever had a team leader say that." Ms. Fancey was asked in cross-examination whether she gave to Ms. Lepage and Ms. Lajoie a date for the incident with the grievor, during their investigation, or whether they asked for a date. Ms. Fancey replied she could not recall. She was also asked if the incident she described happened in June or July 2007 and she answered it was "most definitely after August, [I] think it was the end of September."

127 I accept that this matter has taken a long time to be brought to adjudication. However, I have no evidence to explain this and, therefore, I have no basis to make any findings about delay. Delay leads to obvious difficulties when witnesses try to reconstruct events that happened five years ago but I do not agree with the grievor that the evidence of the respondent's three witnesses can be dismissed entirely because they could not be precise about dates. I do accept that the evidence of all witnesses must be weighed carefully in light of the time that has passed. I am satisfied, on a balance of probabilities, that Ms. Dickson, Ms. Magee and Ms. Fancey's evidence is sufficiently reliable about the timing of the incidents they described. As well, as discussed in detail above, the evidence is not altogether black and white. For example, the evidence of the grievor that she could not recall the incident with Ms. Dickson leaves open the correctness of Ms. Dickson's evidence. Also, in her statements and evidence, the grievor referred to a number of incidents and she too did not make reference to dates. It is of further significance that in her evidence and statements the grievor stated that she did require staff to reassess some situations when staff were prepared to enter Ms. Smith's cell. The dispute in those incidents is whether the reassessment was appropriate. This is also discussed below.

128 In summary, the evidence of the grievor does not directly contradict at least two of the witnesses of the respondent. In the case of Ms. Dickson, the grievor testified that she could not recall and this is to be contrasted with the detailed account of Ms. Dickson. Overall, I conclude that the evidence of Ms. Dickson, Ms. Magee and Ms. Fancey is consistent over time and is to be preferred over that of the grievor.

129 It follows that I find that the respondent has proven on a balance of probabilities that the grievor made the statements she is alleged by the respondent to have made.

2. Records and videos

130 I am also urged by the grievor to discount the evidence of Ms. Dickson, Ms. Magee and Ms. Fancey in its entirety because there is no evidence of any incident reports or videos of the incidents they describe. There are some incident reports in evidence but not ones related to the situations described by these witnesses. It is submitted on behalf of the grievor that it is "outrageous" that the respondent made a "career-ending decision" about the grievor without producing these reports or videos. As a regulatory matter, of course, I do not have any authority to make conclusions about the record keeping of the respondent.

131 The submission of the grievor goes further, however, and urges me to draw an adverse inference from the respondent's failure to provide relevant information in its control (Vieczorek v. Piersma, [1987] 58 O.J. No. 124 (Ont. C.A.), at para 17; Bryan, Lederman & Fuerst, The Law of Evidence in Canada, Third Edition, 2009, at page 377). On this view, according to the grievor, I should conclude that the respondent has information in the form of reports and video tape that supports the grievor's version of events, it has withheld that information from these proceedings and, therefore, I should prefer the grievor's testimony over that of other witnesses, such as Ms. Dickson, Ms. Magee and Ms. Fancey.

132 A preliminary comment on this issue is that there is no evidence of any deliberate attempt by the respondent to hide evidence. I was involved in some discussions about disclosure of evidence and an order was issued by the Board on this issue. All of these discussions related to privacy concerns. As well, the evidence of the grievor is not that the respondent acted dishonestly. In the case of Ms. Dickson the grievor could not "recall" it happening the way Ms. Dickson described it; in the cases of Ms. Magee and Ms. Fancey there was a difference of opinion about whether to enter Ms. Smith's cell.

133 Turning to the authorities, I note that a trier of fact is not required to make an adverse inference when a party does not submit information that may be relevant (Vieczorek, at para 17). As well, this is not a case where the respondent has presented no evidence on a material point, such as when an employee declines to give any evidence in a hearing about discipline against her or him. Instead, I am being asked to prefer one description of events over another. In my view, the principles involved in the concept of adverse inference do not require me to find that the grievor is correct and the respondent is not correct; an adverse inference is one part of an adjudication along with consideration of all the other evidence.

134 Having said that, I do note the detailed description given by, for example, Ms. Lepage and Ms. Lajoie in the reports and videos they reviewed. As above, the events of October 17, 2007 are not before me in any direct sense. With regards to the incidents referred to by Ms. Dickson, Ms. Magee and Ms. Fancey, again, I have not been given any reports or videos of the events described by them, other than the investigation. However, that is the respondent's risk and its case will succeed or fail on the evidence it has submitted.

135 In summary, I do not accept the submission made on behalf of the grievor that failure to present records or video tape in this case means that I must dismiss all of the respondent's evidence.

3. Manager of Integrative and Intervention Strategies

136 Another issue raised by the grievor is that the May 5, 2008 letter of discipline contains the statement that the grievor "in [her] role" as MIIS gave "misdirection" to other officers about not entering Ms. Smith's cell if she was still breathing.

137 As above, the grievor was employed as a team leader until the end of September 2007 and then she moved to the position of MIIS. In the latter position, according to the grievor, she had different responsibilities including no operational control of correctional officers in the segregation unit (I discuss this further below). This is set out in her memorandum of March 12, 2008, among other places. Further, Ms. Smith's death occurred on October 19, 2007 and, in the week before that date, the grievor was away from GVI, in Ottawa, for training as a MIIS.

138 The primary focus of the evidence of the respondent is that the grievor's misdirection to staff occurred while she worked as a team leader i.e., before the end of September 2007. The matter is not entirely clear because most witnesses (including the grievor) were not specific about dates. Ms. Fancey was definite that the incident she described occurred after the end of August 2007, she thought the end of September. As well, Ms. Magee was clear that the incident she described happened while the grievor was a team leader. I conclude that it is at least probable that the allegations against the grievor took place while she worked as a team leader, that is, before she worked as MIIS. At the end of this section I conclude that she could have given some form of direction to staff while working as a MIIS, but there is no evidence she did so.

139 From this I conclude that the reference in the May 5, 2008 discipline letter to the grievor giving misdirection while in her role as a MIIS is an error. The more difficult issue is determining the significance of this error.

140 According to the grievor, this error amounts to a changing of the grounds of the discipline imposed on the grievor. As I understand it, this means that the respondent originally alleged that it was during her work as a team leader that the grievor gave the misdirection to staff and now it is saying it was given while she worked as a MIIS. A leading text is relied on for this submission (Brown & Beatty, Canadian Labour Arbitration, at paragraph 7:2200): "Arbitrators generally require employers to justify the sanctions they impose on the same grounds they refer to when they actually discipline an employee, even though at common law an employer can rely on any ground to justify dismissal." Further, an employer should not be allowed to enlarge the grounds for discipline by adding new allegations.

141 The leading case on this point is Aerocide Dispensers Ltd., (1965) 15 L.A.C. 416 (Laskin). In that case, the arbitrator refused to allow the respondent to justify its discipline on the basis that an employee had tried to "persuade" another worker to join a strike when it failed to prove he had "instructed" her to do so, as initially alleged by the respondent. The Brown & Beatty text also points out that arbitrators have refused to turn an incident that precipitated discipline into a different offence. The same text states that since 1965 there have been "[m]any exceptions and limitations" to these statements. For example, a respondent may add grounds that were unknown and not easily discoverable at the time the decision to discipline was made and, in some cases, "post discipline facts" can be admitted by employers. 

142 In my view there are problems characterizing the respondent's error about the MIIS position as a change of the grounds for the discipline itself. As can be seen from the May 5, 2008 letter, the grounds for the discipline in this case are the allegation that the grievor contravened the respondent's policies and that her "misdirection … contributed to" the slow response to the self-injurious behaviour of Ms. Smith. That ground is not changed by the fact that there was an error by the respondent about what position the grievor held when she gave the "misdirection."

143 The Brown & Beatty text characterizes the situation in the case before me as an issue of notice (paragraphs 7:2110, 7:2200). The authors describe the fundamental importance of giving employees notice of what action an employer is going to take. Further, "[a]s a general rule, arbitrators insist that employees be given enough information that they know what allegations are being made against them so they can respond appropriately." Unless the collective agreement in a unionized workplace says otherwise:

…

… arbitrators have generally taken the position that, in giving notice, the employer is expected to convey the reasons and purposes behind its decision but not necessarily all of the particulars and details of its case. How much information must be included in the notice depends on the language of the collective agreement and the facts of each case. In some cases the time, place and date of the event may be essential, in other cases they may not.

…

144 I note also that even the grounds for discipline can be changed if sufficient notice is given. In general, documents that reflect disciplinary decisions in a labour relations context are not construed in a strict technical sense, as might be the case with pleadings in the civil courts. A decision of this Board concluded that the test is whether there is doubt that the issue in dispute was raised earlier (Lacoste v. Deputy Head (Correctional Service of Canada) 2010 PSLRB 68, at para 28-30).

145 In the case before me, there is considerable history prior to this adjudication, primarily related to the investigation and disciplinary processes of the respondent.

146 For example, notes from the investigation conducted by Ms. Lepage and Ms. Lajoie record a detailed discussion with the grievor about the situation with Ms. Smith and related general issues. She advised the investigators that she was in the position of MIIS before the death of Ms. Smith and she "… had no supervision role for any staff … She provided only advice to staff and not direction." The grievor's interaction with various officers was discussed in the interview, including how they responded to Ms. Smith when she put on ligatures. The grievor was asked about medical distress situations and she explained that "it was a personal choice of the officer's, based on constantly assessing …" Ms. Smith. Officers "were to assess if she was breathing, walking , talking, is the ligature tight and there was no right or wrong." The grievor said to the investigators that she "told staff that this will 'test your convictions' as it is human nature to go in right away …" From this, it is clear that the grievor perceived herself as a team leader giving direction to staff at the material times.

147 The investigation report of January 25, 2008 made a number of findings and it included the investigators' notes of the statements of the witnesses they interviewed. Some of the findings were against the grievor; these are specifically identified in the conclusion of the report, as are the findings against other employees. In the notes of the interview with the grievor, the grievor answered yes to being involved with incidents involving Ms. Smith. When she was asked about her role she said her office was near Ms. Smith's cell and she "recalled being on the Segregation Range as management presence but she never responded … she stated that her role was to observe and ensure things were done correctly" [emphasis added]. In fact, as discussed in the grievor's and others' evidence, she did respond in some incidents and she was the manager at the time.

148  Finding E1 of the investigation report stated that the grievor and others "… erred in their interpretation of what constituted a medical emergency or medical distress and in the direction they provided to staff to not intervene and withdraw/assess as a result of this error." Finding G1 states, with regards to the grievor and another employee, that they "gave direction to staff" and "… they were the managers in charge of operations and daily routines on the unit." The narrative under Finding G11 notes the value of the situation management model ("SMM") and the "reassess portion of that model appeared to be the "primary focus" of the grievor and others. Further:

…

[t]his focus was clearly communicated to staff both directly and indirectly … There existed at GVI an environment whereby the application of the model as directed by the a/n [sic] managers was focused more on reassessing than ensuring an appropriate response.

…

149 On March 15, 2008 the grievor provided a very detailed reply to the investigators' report and to some of the statements of the witnesses, including Ms. Dickson, Ms. Magee and Ms. Fancey. Among other things, she described the direction she gave to primary workers as a manager. She also repeated that, as a MIIS, she did not have operational responsibility for what occurred in the secure unit.

150 Following all of this (the grievor's interview with the investigators, the release of their report and then the grievor's reply document) Ms. Stapleforth issued the May 5, 2008 letter of discipline. It contained an error about the position held by the grievor at the material times. However, I am unable to conclude that the grievor did not receive notice of the allegations against her. Specifically, she knew in January 2008 or earlier that the respondent believed that, as a member of the management team and as a team leader, she had violated the respondent's policies and misdirected the staff under her direction. In fact, her own statements explain how she supervised staff, including providing direction and insisting that staff not use force in some circumstances (including if Ms. Smith was breathing). Nor can there be any doubt that the respondent was concerned about the grievor's actions in the context of the death of Ms. Smith and whether her actions and that death were somehow related. After all that was the purpose of the investigation in the first place. In conclusion, this is not a case where the respondent erred from the beginning about the grievor's position; the error came at the end of a process that correctly situated the grievor as a manager with operational responsibility.

151 By way of a summary, I am unable to find that the error by the respondent in its letter of May 5, 2008 about the grievor being in the MIIS position when she gave misdirection to staff was a change in the grounds for the 20-day disciplinary suspension. Further, the error occurred well after the grievor knew the allegations against her. She could have no doubt that the allegations against her related to her work as a team leader and before she moved to the MIIS position. If it is necessary to say, the move to the MIIS did not somehow insulate the grievor from the consequences of her actions a short time before while working as a team leader.

152 As a final matter under this issue, I accept that the work of the grievor changed when she moved from the position of team leader to that of MIIS. I also accept that the change meant that the grievor had less operational control over staff in the segregation unit.

153 However, I do not accept that the move into the MIIS position meant that the grievor had no responsibility for what went on in the segregation unit. For example, the job description for the MIIS position states that the grievor was to provide "advice, guidance and training to management and staff" and "[p]lans and directs interdisciplinary teams … focused on the provision of treatment, services, and reintegration . . . and intervenes directly in difficult cases as necessary." And the MIIS is to manage:

…

… the provision of treatment modalities within a Structured Living Environment … within a Secure Unit … for maximum-security women offenders presenting mental health issues, … behavioral problems and for high risk, high need women. In addition, manages supervision and interventions of offenders under disciplinary and/or administrative segregation within the institution.

…

154 As the grievor says, following the restructuring in September 2007, the team leader position she occupied before that date became the MIIS position. She had significant operational responsibility as a team leader but that was much reduced when she became a MIIS and correctional managers took on increased operational control after September 2007. However, also I conclude that the grievor defines her role as a MIIS too narrowly. As the MIIS she had the responsibility to provide guidance and training, the job description says a MIIS "intervenes directly in difficult cases as necessary" and she was to manage the supervision of difficult offenders. Additionally, in cross-examination the grievor was questioned about the MIIS job description and she agreed that Ms. Smith was "high risk" with "high needs." Therefore, the grievor may have had "no line authority" as she put in her March 12, 2008 memorandum. However, she had some responsibility for the management of Ms. Smith and for supervising staff in that regard, bearing in mind that the correctional manager appears to have the primary responsibility. Put another way, it cannot be said that the grievor had no responsibility.

4. Other issues

155 The grievor takes issue with various procedural issues in the respondent's investigative report and disciplinary process. Many of these are actions taken by the respondent that appear to be contrary to the requirements in the November 1994 guide to discipline, that Ms. Stapleforth testified was applicable. Other allegations go to weight rather than admissibility. For example, the investigation conducted by Ms. Lepage and Ms. Lajoie did not interview any of the officers who worked on October 19, 2007, the date of the death of Ms. Smith, but their report concluded that the grievor's actions contributed to the death of Ms. Smith. I note that the investigation report was directed at the management of GVI, rather than the death of Ms. Smith.

156 The general answer to these concerns is that these matters were fully canvassed through the evidence of this adjudication, including vigorous cross-examination. Therefore, any procedural unfairness in previous proceedings are "wholly cured" by means of the hearing de novo of this adjudication (Tipple v. Canada (Treasury Board), [1985] F.C.J. No. 818).

157 It is also submitted on behalf of the grievor that the respondent's witnesses should not be believed because they were motivated by concerns that the respondent was putting the blame on primary workers for the death of Ms. Smith. Ms. Dickson was asked this directly in cross-examination and she agreed that she believed unfair blame was being put on primary workers. When she was asked whether management should share the blame she replied, "I believe anybody who had a role for decisions about Ashley’s case should be accountable." In my view that was a fair and balanced answer and there is no other evidence that supports a conclusion that the respondent's witnesses were biased.

5. Summary: was there misconduct?

158 With the above in mind I return to the question posed at the beginning of this section: was there misconduct on the part of the grievor?

159 I begin with the issue of whether the actions of the grievor, described above, violated the respondent's policies, as alleged by the respondent.

160 CD 567, CD 800 and CD 843 describe a "medical emergency" in the same way: "an injury or condition that poses an immediate threat to a person's health or life which requires medical intervention." In addition, CD 843 relates to the prevention and management of suicides and self-injuries and it defines "suicide" as "the intentional taking of one's own life"; "[s]uicide attempt" as "an intentional self-inflicted injury or action that does not result in death although death was intended"; and "[s]elf-injury" a "the deliberate harm of one's body without conscious suicidal intent." Additionally, a "[s]uicide watch" is "the isolation of an inmate in response to an assessment of imminent danger of self-injury or suicide."

161 From October 9 to 19, 2007 Ms. Smith was assessed as a very high suicide risk. According to the summary note of what the grievor said during the investigation conducted by Ms. Lepage and Ms. Lajoie, she was unaware of this level of risk because she was "… on training the week before 19 October 2007." However, prior to the grievor moving to the position of MIIS, the evidence is that from the time Ms. Smith moved into the secure unit until October 19, 2007 she was a suicide risk, albeit at differing levels. The investigators' notes also record the grievor saying that she was aware of the escalating ligature use by Ms. Smith and "… we all thought the risk was escalating and we had to become more vigilant." I find that the grievor knew before she started work as MIIS that Ms. Smith was a suicide risk, probably a high risk at times.

162 CD 567 sets out a number of responses for the management of security incidents, including medical emergencies. Section 17 states that staff are to know and understand the applicable law, policies and procedures and are to "… take every reasonable step to return the institution to a safe and secure environment as soon as possible when they become aware of any situation which, in their opinion, jeopardizes the safety of the institution or anyone in it."

163 There is little doubt that, on the occasions Ms. Smith was using a ligature that caused her to gasp and exhibit other serious problems with breathing, these were security incidents within the meaning of CD 567. The evidence is that what was a "reasonable step" to return the environment to being safe and secure depended on a number of factors including whether negotiations would result in the removal and surrender of the ligature. In cases where the symptoms were severe and negotiations were not successful, entry into the cell with force to remove the ligatures was reasonable under CD 567.

164 As a member of management, the grievor had an important role in supervising these difficult judgements and ensuring that force was not being used more than necessary. Force is a blunt tool and its use must be supervised. Similarly, management has a responsibility to make sure that force is being used where and when it was appropriate. In some cases, the decisions of primary workers will be legitimately countermanded because a manager sees or knows something the primary workers do not see or know. These are obviously complex areas of judgement and, as in this case, involve situations where there is always some risk. But they are part of the work of correctional officers and their managers. All officers are required to follow policies (and the law) in order to minimize the risk when they exercise that judgement.

165 The possible excessive use of force in the case of Ms. Smith was apparently a concern of AA, from regional headquarters, and it was also a concern for the acting warden as demonstrated by her emails to correctional managers and reports to regional headquarters. It can perhaps be said that the grievor was reflecting those concerns when she countermanded the decisions of primary workers (this is also discussed below). In any event, she bears personal responsibility for the decisions she made and directions she gave to staff. I add that I do not agree with the submission made on behalf of the grievor that the respondent has to prove that the grievor gave a "blanket direction" to staff not to intervene with Ms. Smith. The reference to "explicit direction" in the May 5, 2008 discipline letter is capable of meaning that there were specific incidents, as in the evidence.

166 I also have the evidence of Ms. Lepage, a very experienced and senior correctional officer, who conducted the investigation of the management of Ms. Smith. Ms. Lepage testified (I address her report below) that the grievor provided "incomplete direction" on medical emergencies to staff, and this was contrary to the respondents policies. Ms. Lepage was careful not to make any comments in her report or evidence about what discipline was appropriate in the case of the grievor, although she knew that her report could lead to discipline of employees.

167 Taken together, I conclude that there were medical emergencies in the incidents recounted by Ms. Dickson, Ms. Magee and Ms. Fancey. This is evidenced by the decisions of the primary workers on the range at the time and also by the grievor's eventual agreement or acquiescence in the decision to enter Ms. Smith's cell. I agree with Ms. Lepage that the grievor's directions to staff reflected errors about the application of the respondent's policies.

168 It is submitted on behalf of the grievor that judgement is not part of the analysis of the issues raised in the May 5, 2008 discipline letter because it does not refer to judgement. However, in my view, the letter is not to be construed that narrowly or technically and I am satisfied that whether the grievor misdirected staff and/or contributed to the death of Ms. Smith includes questions of judgement. As well, much of the work of correctional officers, especially at a senior level, involves judgement and it would be an artificial exercise to assess the decisions they make without also considering the complexities of judgement. For example, the decision whether to enter a cell with force is primarily a question of judgement. It is also one that must be made in the context of training, policy and law and the respondent is entitled to assess the judgement of correctional officers in this context. Judgement can perhaps be exercised differently by different people and the role of policy and law is to narrow the differences in how judgement is exercised. However I disagree with the submission of the grievor that decisions such as whether to enter a cell with force to stop self-injurious behaviour, possibly leading to suicide, is simply a "gut" decision. I do agree with the grievor that not every incident where Ms. Smith had a ligature around her neck was a medical emergency under the respondent's policies. However, the evidence here reflects medical emergencies.

169 In this case, there was an inmate who was determined to harm herself and there was clear information about the presence of harm. Whether Ms. Smith was breathing or not, and whether that could be determined from outside her cell, was a reasonable question to ask but it was not the determinative one. Reassessments are appropriate some times and at other times they increase risk to a critical level. In the present case, the intervention of the grievor in decisions already made by primary workers caused delay in the use of force to enter Ms. Smith's cell, thus increasing the risk of serious injury. To paraphrase the investigators' conclusion in their January 2008 report, the focus of the grievor (and others) was on reassessing the situation rather than ensuring there was an appropriate and immediate response as required by policy. I agree with that conclusion. Fortunately, there is no evidence of serious health consequences in the incidents described in this adjudication. We do not, and cannot, know the consequences of not intervening in those incidents.

170 There is then the issue of, as the respondent puts in its letter for May 5, 2008, whether the grievor "contributed to" confusion among primary workers about when to intervene using force with Ms. Smith. In my view there is validity to that statement. Certainly the evidence of Ms. Dickson, Ms. Magee and Ms. Fancey is that they were frustrated with the grievor's insistence on reassessments and they did not know why reassessments were necessary. This became elevated into confusion when the grievor ultimately agreed with the primary workers or left them to their original plan. I emphasize that this specific conclusion is independent of any issue related to the death of Ms. Smith.

171 The May 5, 2008 letter also alleges that the grievor's "misdirection" to staff "… contributed to the slow response to the inmate's [Ms. Smith's] self-injurious behaviour on October 15th, and 19th, 2007." This is a more complicated matter. First of all, there is no evidence that the grievor had any direct effect on what happened on those dates. No witness has said she or he worked on October 19, 2007 when Ms. Smith died (or October 15, 2007), nor is there any evidence that what the grievor said as a manager before those dates affected what happened that day. None of the respondent's witnesses in this adjudication worked on October 19, 2007.

172 Looking more broadly at the situation at GVI in September and October 2007, the evidence is that there was a real tension within GVI concerning the management of Ms. Smith.

173 On the one hand, there were the primary workers who were in favour of more frequent use of force. That is perhaps understandable since they are on the front line of the respondent's operations and they had to deal with the direct consequences of self-injurious behaviour. Those consequences were/are primarily on inmates but there is also an emotional toll on the primary workers themselves. The notes taken by Ms. Lepage and Ms. Lajoie capture the attitude of one concerned front line worker (and the complexity of the situation) as follows: "…[f]ront line workers liked [Ms. Smith]. They were humane. They were frustrated. Joked with her a lot, she had a good sense of humour. The Use of Force was just them doing their job, we needed to get those ligatures off" [Sic throughout].

174 On the other hand, members of management urged staff not to use force as often. This seems to have come to a head in the memorandum of October 11, 2007, from the acting warden to regional headquarters, that management was considering disciplinary hearings on the issue. Further, another member of management sent an email on October 10, 2007 to correctional managers advising them that "… your staff are not withdrawing and reassessing as Ashley starts to talk and/or get up." The managers were to ensure that staff complied with this, that they applied the SSM and they "… be alerted to this serious non-compliance issue." There is also the matter of AA, from regional headquarters, who criticized staff in a training session for using too much force with Ms. Smith.

175 As one would expect, the grievor was more on the side of management in this situation. I qualify that statement because she ultimately agreed (after insisting on reassessments) with the original assessment of the primary workers or said "[i]t's your shift" and let them proceed. The emails of October 10, 2007 from the deputy warden, to correctional managers and the grievor (and the memorandum of October 11, 2007), explicitly stated that primary workers were to do more reassessments as an alternative to the use of force. This was after the grievor started in the position of MIIS, and when everyone knew that the management of Ms. Smith was becoming critical. But it is clear the same idea was being discussed while the grievor was a team leader. In this regard I note that the October 11, 2007 memorandum is based on incidents that occurred on September 22 and 23, 2007. Of course, following orders does not absolve anyone in these situations, and nor does the grievor use that defense.

176 The significance of this, in my view, is that the evidence supports a conclusion that the grievor participated in a situation that caused delays in making interventions with Ms. Smith. The grievor's actions slowed down the response of staff to medical emergencies. To this extent she "contributed" to the overall situation at least in the sense that her directions to staff were consistent with the general approach of management.

B. Was the 20-day suspension appropriate in the circumstances?

177 As above, I find that there was conduct by the grievor that justifies some discipline. In summary, the grievor violated the respondent's policies when she misdirected staff about whether to enter the cell of Ms. Smith; intervention was required by those policies but reassessment was considered more important. Prior to October 19, 2007, the grievor also caused confusion among primary workers about when to enter Ms. Smith's cell.

178 The respondent submits that a 20-day suspension is an appropriate penalty for the grievor in the circumstances of this case. On the other hand the grievor submits that she should receive no penalty. Since I have found some misconduct I do not agree with the grievor that there should be no penalty. Therefore, the issue is whether I should agree with the respondent and impose a 20-day suspension or impose a different penalty.

179 I have identified above the tension at GVI up to October 19, 2007 over the management of Ms. Smith. In summary, primary workers wanted to intervene with force, and more often, while management, including the grievor, sought to reduce the amount of force used. With regards to the latter view, for example, the acting warden wrote on October 11, 2007 that "… the inmate [Ms. Smith] was observed breathing and talking, however, the staff entered the cell to remove the ligature. The staff should have withdrawn and re-assessed the situation prior to the use of force being utilized." Further, "… the deputy warden will be conducting disciplinary hearings …" because staff did not withdraw. It is self-evident that withdrawal and reassessment causes delay and makes for a slower response. Again, this document was written after the grievor moved to the MIIS position but the date of that move has no relation to the management of Ms. Smith, except that her management was generally becoming more difficult and critical over time.

180 The respondent does not take the position that the grievor's actions were directly related to the death of Ms. Smith. Instead it states in the May 5, 2008 discipline letter that the grievor's "misdirection" to staff "… contributed to the slow response to the inmate's [Ms. Smith's] self-injurious behaviour on October 15th, and 19th, 2007" [emphasis added].

181 Comparing this letter with the above documents from October 2007, it is apparent that there is an inconsistency within the respondent about how to manage Ms. Smith.  Prior to October 19, 2007 staff were to withdraw and reassess but after that date withdrawal and reassessment were seen as part of a slow response.  In my view, this inconsistency is relevant to the assessment of discipline in this case because it can be fairly stated that the grievor was, in a real sense, misled about how to manage Ms. Smith. Before October 2007 she was apparently being consistent with the respondent's direction but then the same actions were considered to have contributed to the slow response by staff on October 19, 2007. There is no evidence that discipline was considered, or even comments made, about the risks of not enough force until after the death of Ms. Smith. The respondent is generally entitled to assess events in retrospect for disciplinary purposes. But it is equally appropriate to point out that it had no problems with interventions in the management of Ms. Smith like those done by the grievor before the death of Ms. Smith.

182 Returning to the discipline letter of May 5, 2008, I am unable to see that the respondent has recognized that the grievor was doing what was expected of her as a manager. I agree that the grievor bears some responsibility for her role. But, in my view, "contributed" should be read down to mean that the grievor was part of a broader management initiative. I conclude that  this is an important mitigating factor in the grievor's favour. As a member of the management of GVI, the grievor is not blameless but, in my view, there are grounds to set aside the penalty of a 20-day suspension because it was not appropriate to all of the circumstances of her case.

C. What penalty is reasonable and just in the circumstances?

183 Having decided above that the penalty of a 20-day suspension is excessive, I next turn to what penalty is just and reasonable in the circumstances of this adjudication. Specifically, what lesser penalty is appropriate?

184 In terms of the mitigating factors that are generally considered (United Steelworkers of America, Local 3257 v. Steel Equipment Co., [1964] O.L.A.A. No. 5 (Reville)), the grievor has been a correctional officer since 1984 and without any discipline during those years of service. She has had a number of responsible positions with the respondent over the years, with the expectation that she would ultimately work at senior levels of the correctional service. She testified that the 20-day suspension imposed on her has had a significant negative impact on her career, including financial loss. Considering another factor, the grievor does not accept responsibility for her actions; indeed, she denies any wrongdoing. She genuinely acknowledges the tragedy of the death of Ms. Smith, as do all the witnesses.

185 As explained in detail above, and in the voluminous materials in evidence, there can be no question that the management of Ms. Smith involved a very difficult and complex situation that tested all staff who had any dealings with her. On the other hand, as discussed above, correctional officers know what is expected of them, including the prospect of managing very difficult inmates and they are subject to a higher standard of conduct than employees in other occupations (McKenzie).

186 The grievor was not the only one to be disciplined as a result of the death of Ms. Smith. I have reproduced an anonymized list of those employees above. I was advised by counsel that some employees with equivalent or higher levels of responsibility at GVI in October 2007 (compared with the grievor) received no discipline. One person with higher or equivalent responsibility remains terminated but two employees who were initially terminated ended up with no discipline. Some employees had a 60-day suspension reduced to 15 days, one employee had a 20-day suspension substituted for termination and another employee had a demotion substituted for termination. It appears that only two employees ended up with no change to the initial discipline. The grievor also points to the case of AA who apparently received no discipline even though he provided training to primary workers that included criticism about excessive use of force in the case of Ms. Smith.

187 I was given limited information from counsel about the individual circumstances of each of these other employees. This was because of legitimate privacy concerns and because, logically enough, it is not my role to assess the circumstances of their cases, including what discipline was justified. The evidence on these other employees is limited to that of Ms. Stapleforth, a witness for the respondent, who testified in cross-examination that she could not "speak to the rationale for" the final decisions made in their situations. The result is that I have no evidence about why changes in discipline were made for these other employees. With regards to AA, I do not know anything about his situation.

188 It is urged on behalf of the grievor that what happened to other employees is of considerable significance for the grievor in this case. In fact, it is submitted that the result should be no discipline for the grievor. I see no basis for that proposition. The evidence is that some people were disciplined, others were not and others had their discipline reduced. I do not agree that this means that the discipline against the grievor should be set aside entirely.

189 In my view, it is not possible to discern any pattern in the discipline of other employees and, specifically, any pattern that assists the grievor. Again, except for noting that some officers and managers received some discipline (and others did not), I cannot make any useful comparisons because I do not know the circumstances of their cases. What I have before me is a full record as to the grievor's role in the events at GVI prior to the death of Ms. Smith. All I can do is to consider that record and make a decision based on it.

190 It follows from the above that I conclude that there should be a reduction in the amount of discipline imposed on the grievor. The reasons for this are that the respondent did not consider the context in which the grievor acted and, in particular, the grievor is being held culpable for actions that higher management directed staff to do. This is a serious deficiency in the respondent's decision to discipline the grievor. It does not justify eliminating the discipline but it does warrant a significant reduction in discipline. A less significant but relevant factor is that there is no evidence linking the grievor directly with the events on October 19, 2007, when Ms. Smith died.

191 In all of the circumstances I conclude that a 10-day suspension should be substituted for the 20-day suspension imposed by the respondent. In my view that penalty reflects the seriousness of the grievor's misconduct, it reflects the context in which her misconduct took place and it takes into account other mitigating circumstances, as explained above.

V. Summary and conclusions

192 The respondent imposed a 20-day disciplinary suspension on the grievor on the ground that she violated the respondent's policies with regard to medical emergencies involving an inmate, Ms. Smith. Ms. Smith was an extremely difficult inmate to manage; staff had to enter her cell numerous times with force to remove ligatures she had put around her neck.

193 The respondent's evidence is that, on at least two occasions, staff were prepared to enter Ms. Smith's cell with force in order to remove ligatures. The grievor intervened and required staff to reassess the situation, including whether Ms. Smith was still breathing. The respondent alleges that the grievor's actions "contributed" to a slow response by other staff when Ms. Smith died in custody on October 19, 2007, as a result of a ligature around her neck. This adjudication is not about the death of Ms. Smith.

194 According to the evidence of the respondent, the situations where the grievor intervened were medical emergencies because Ms. Smith was choking, gasping for breath and her face exhibited other symptoms of suffocation. According to the respondent, the grievor, as a manager, gave higher priority to reassessment than intervention. I agree with those conclusions. Ultimately, the grievor either agreed that entry with force was necessary or she acquiesced in the entry into the cell.

195 The grievor disputes the evidence of three witnesses who testified for the respondent. I conclude their evidence is to be preferred over the evidence of the grievor. They had specific recollection of the events in question or the grievor's evidence was stated broadly enough to include the evidence of the respondent's witnesses. For example, in two cases, the grievor did not dispute the fact that she intervened and stopped staff from entering Ms. Smith's cell. Instead, she said it was justified because of the circumstances. While the respondent's witnesses were not clear about the dates of the incidents they described, that is a matter of weight and it does not justify dismissing their evidence entirely.

196 The context for the events in evidence included a subsequent directive from senior levels of management (above the grievor) that staff were entering the cell of Ms. Smith and using force too often. Discipline was considered for staff who did not follow the direction by management not to intervene as often or with as much force. This was also the subject of criticism of staff in a training session.

197 The grievor was not at work the day of Ms. Smith's death, she had been away the previous week for training in a new position (MIIS) that started at the end of September 2007. This new position had limited operational responsibilities compared to her previous position of team leader.

198 The respondent's discipline letter of May 5, 2008 contained an error. It referred to the incidents used by the respondent to justify the discipline occurring while the grievor was in her "role" as MIIS. In fact the grievor had started that position after the events described by the respondent's witnesses. Their evidence was consistent with this. The error in the discipline letter was not a change of grounds of discipline by the respondent. The grounds remained the allegation that the grievor violated the respondent's policies. Further, the error occurred at the end of the investigation and disciplinary processes. During those processes, the grievor had full notice that the allegations against her arose while she was in her previous position of team leader. In fact, during the investigation process, the grievor described herself as a manager with responsibility over staff.

199 There were no reports or video evidence to support the evidence of the respondent's witnesses. That is a question of weight and it does not justify setting aside the discipline entirely. Any procedural issues in the investigative or disciplinary stages were wholly cured by the hearing de novo in this adjudication. As well, the respondent's witnesses were not biased because they thought primary workers had been punished more severely than management.

200 With regard to the discipline itself, there was misconduct to justify some discipline against the grievor. She violated the respondent's policies when she chose reassessment over intervention and she caused confusion among staff about how to respond to medical emergencies. There is no evidence that the grievor had any direct connection to the death of Ms. Smith.

201 The 20-day suspension was excessive in the circumstances. The context in which the grievor intervened with staff and required a reassessment of Ms. Smith's situation were consistent with the directions of her supervisors at the time. The respondent's decision that a 20-day suspension was appropriate did not take into account that fact. The grievor nonetheless bears some responsibility for the incidents described in the evidence and a 10-day suspension is substituted as being just and equitable in the circumstances.

202 For all of the above reasons, I make the following order:

VI. Order

203 The grievance is allowed in part, as described above. A 10-day suspension is substituted for the 20-day suspension imposed by the respondent.

September 7, 2012.

John Steeves,
adjudicator