Date:  20140618

File:  566-02-7818 to 7821,

8441 and 8445

 

 Citation:  2014 PSLRB 65

Public Service Labour Relations Act

Before an adjudicator

Between

 

Mark Legere and Jarrett Derksen

 

Grievors

 

and

 

DEPUTY HEAD

(Correctional Service of Canada)

 

Employer

Indexed as

Legere v. Deputy Head (Correctional Service of Canada)

 

In the matter of individual grievances referred to adjudication

Before:  Margaret T.A. Shannon, adjudicator

For the Grievors:  Corinne Blanchette, Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN

For the Employer:  Sean Kelly, counsel

Heard at Abbotsford, British Columbia,

May 14 to 17, June 11 to 14, November 19 to 22,

and December 3 to 6, 2013..

REASONS FOR DECISION

I.  Individual grievances referred to adjudication

[1]  At all material times, Mark Legere and Jarrett Derksen (“the grievors”) were correctional officers (CXs) employed by the Correctional Service of Canada (“the employer” or CSC) at Kent Institution in British Columbia (“the institution”). Each grieved being suspended without pay pending an investigation, being subsequently suspended indefinitely without pay, and ultimately being terminated, which the employer alleged was for cause. All the grievances were heard at the same time, for the sake of expediency.

II.  Summary of the evidence

[2]  Much of the testimony was about a series of inmate treatment incidents that occurred on July 20 and 21, 2012, and on August 11 and 12, 2012, and that involved the grievors. To the extent possible, the evidence that will be summarized about these incidents will be related by date and will identify which grievor was allegedly involved. Any evidence that is more general in nature and that is not specific to the incidents that allegedly occurred on these dates applies equally to both grievors. Unless otherwise indicated, each grievor’s testimony is applicable to his grievances only and not to those of the other grievor.

[3]  In the summer of 2012, the employer became aware of five alleged assaults on inmates involving a number of CXs. As a result, the grievors were suspended indefinitely, and a disciplinary investigation was launched into their roles in the alleged assaults. Mr. Derksen was investigated for his role in two separate incidents of excessive use of force on one Inmate Z (the incidents of July 20 and 21, 2012). Mr. Derksen was also investigated for facilitating two separate assaults on one Inmate N by another inmate on August 12, 2012. Mr. Legere was investigated for an alleged use of excessive force on an Inmate B on August 11, 2012, and for his role in facilitating the assaults on Inmate N on August 12, 2012.

[4]  The employer also investigated a purported collusion between the grievors, who allegedly sought to hide the incidents by omitting key details in their “officer’s statement and observation reports” (OSORs) or by failing to report any part of the alleged incidents. The grievors allegedly also colluded with other CXs to falsify OSORs submitted at management’s request following the August 12, 2012, incident. According to the employer, the grievors continued to provide false information to the employer throughout the investigative process related to these incidents.

[5]  In the course of the testimony, security video recordings were submitted by both parties and were marked as exhibits. According to witnesses for the employer, on July 20 and 21, 2012, Mr. Derksen can be seen in the videos applying knee strikes to the head of Inmate Z on two separate use-of-force occasions while at the same time forcing the inmate’s head into the concrete floor with a grinding motion. Both actions constituted excessive force.

[6]  The employer’s witnesses also contended that the videotapes demonstrate that Mr. Derksen stood by while an incident occurred between Mr. Legere and Inmate B on August 11, 2012. Finally, Mr. Derksen can be seen on tape escorting Inmate N on August 12, 2012. Inmate N then assaults one Inmate G, who throws an unknown liquid at him from the shower as Inmate N passes by. According to the employer’s interpretation of the videotape, Mr. Derksen can be seen holding back the progress of the other CXs to prevent them from being hit with the liquid he knew Inmate G was about to throw on Inmate N.

[7]  In the August 11, 2012, videotape, Mr. Legere can be seen striking Inmate B. On the videotapes for August 12, 2012, Mr. Legere stops and talks to Inmate G, who is in the shower. Mr. Legere, along with other CXs, including Mr. Derksen, was on his way to remove Inmate N from his cell and escort him to the shower. The CXs, including Mr. Derksen and Mr. Legere, then escorted Inmate N down the range, knowing that Inmate G was waiting to assault him. The CXs can be seen holding back as Inmate N crosses the path of Inmate G and as liquid comes out of the shower, where Inmate G is located.

[8]  Later that same day, Mr. Legere and two other CXs can be seen escorting Inmate N back to his cell when a broom handle is poked out of the food slot of Inmate G’s cell. Inmate N avoids the broom handle by stepping to the side. Eventually, after putting Inmate N back in his cell, Mr. Legere approaches the open door of Inmate G’s cell, removes the broom and gestures with his hands, according to the employer indicating the amount of distance by which Inmate G missed Inmate N.

[9]  Mark Kemball testified that at the time of the incidents, he was the warden at the institution. He became aware of the August 11, 2012, incident involving Inmate B in a letter from an inmate alleging that incidents had occurred in the Segregation Unit that needed to be investigated (Exhibit 4, tab 7). He looked into the matter and had the assistant warden and the deputy warden review the range cameras to determine if there was any substance to the allegations. After reviewing the video footage submitted as Exhibit 6, he concluded that something seemed out of the ordinary. He then asked to see the OSORs for that day and discovered that no reports had been submitted by any staff working on the Segregation Unit for an incident on August 11, 2012.

[10]  The assistant warden, operations, and the deputy warden reviewed the rosters to determine who was working that day and then asked each officer to submit his OSOR about the events of August 11, 2012. OSORs are to be completed before the end of the shift when the incident occurred or first thing on the officer’s next shift. Mr. Derksen submitted his (Exhibit 4, tab 12) on August 29, 2012. The other officers involved, Messrs. Ferguson, Michael Pierangeli and Minderpal Bains, filed theirs at about the same time. Mr. Legere did not file his until his return from annual leave in September.

[11]  It was determined that a disciplinary investigation was required into the events of August 11, 2012. Mr. Kemball signed the convening order appointing Laura Contini and Brian Weatherbee to investigate initially only the incidents of August 11, 2012 (Exhibit 4, tab 16). The investigators were specifically asked to look into everyone involved. Notice of the disciplinary investigation and the suspension without pay was served on Mr. Derksen on August 24, 2012 (Exhibit 4, tabs 18 and 20) and on Mr. Legere on September 4, 2012 (Exhibit 4, tabs 23 and 25).

[12]  Inmate N also alleged that CX-II Ferguson was guilty of inappropriate behaviour towards him on August 12, 2012. Mr. Kemball asked Deputy Warden Shawn Huish to review the videos for that day as well. Mr. Huish reported to Mr. Kemball that what Inmate N had alleged occurred seemed to have occurred. The convening order related to the August 11, 2012, events was amended to include the events of August 12, 2012.

[13]  The decision to suspend the grievors without pay was based on the seriousness of the allegations, the lack of OSORs and the concern for the institution’s safety. A review of the suspensions was to be conducted every 21 days to determine if they were still warranted. The grievors were not the only CXs investigated for the events of August 11 and 12, 2012. They were two of three who were suspended. Mr. Ferguson was also suspended without pay. All others involved in the incidents remained in the workplace throughout the disciplinary investigation.

[14]  On August 22, 2012, Mr. Kemball became aware of the July 20 and 21, 2012, incidents involving Inmate Z following a review of the use-of-force reports made by the Assistant Warden, Operations, who reported a violation of the employer’s Use of Force Policy. When a reportable use of force occurs, a use-of-force report must be filed, following which the assistant warden, operations, reviews the report, the videotapes and the officers’ OSORs. All are assessed to determine whether the employer’s policy was violated. Once the review is completed, it is submitted to the warden for review. Exhibit 4, tab 45, contains the “Post Use of Force Review” findings concerning Mr. Derksen’s use of force on July 20 and 21, 2012, against Inmate Z.

[15]  Mr. Kemball agreed with the conclusions of the Correctional Manager, Operations (CMO), in the Post Use of Force Report and convened a disciplinary investigation into the incident. Robert Podesta, who was at the time Regional Administrator, Intelligence, on assignment to the institution, was directed to investigate Mr. Derksen’s role in the incident (see Exhibit 4, tab 10). Mr. Derksen was notified of the investigation by letter (Exhibit 4, tab 29).

[16]  The chief of human resources tracks suspensions to ensure that they are reviewed every 21 to 28 days. The employer’s Labour Relations branch reviews the “Larsen” criteria and makes a recommendation to the warden as to whether the employee should return to work. It is the warden’s decision in the end. The warden reviews the memo from the employer’s Human Resources branch, and, if the warden agrees with the recommendations, signs it.

[17]  The expectation when Ms. Contini and Mr. Weatherbee were appointed to investigate the August incidents was that it would conclude by early October 2012, following which a disciplinary hearing would be convened, if required.

[18]  Mr. Huish was Deputy Warden at the institution between December 2010 and November 2012. He became aware of the July 20 and 21, 2012, incidents involving Mr. Derksen and Inmate Z when the CMO brought them up during a use-of-force review process.

[19]  Mr. Huish read the CMO’s report and subsequently viewed the video of the July 20, 2012, incident. He reviewed the use of force then filed and signed section 7 of the use-of-force report (Exhibit 4, tab 3). Included in the use-of-force package were Mr. Derksen’s OSOR (Exhibit 4, tab 4) and Mr. Legere’s OSOR for the same date (Exhibit 4, tab 5). Subsequently, Messrs. Derksen and Legere were provided notice of the disciplinary investigation concerning this incident (Exhibit 4, tabs 39 and 40).

[20]  Mr. Huish testified that a similar process was conducted with respect to the July 21, 2012, use-of-force incident involving Inmate Z. With respect to his involvement in the August 11, 2012, incident involving Inmate B and the two incidents on August 12, 2012, involving Inmate N, Mr. Huish’s involvement was after the fact. After he received the complaint to the warden from Inmate N, Mr. Huish reviewed the videos for August 11 and 12, 2012.

[21]  Mr. Huish tried to piece together the events of those days. It was a lot of work, involving watching footage from different cameras, reviewing logs and reading officers’ OSORs. The OSORs corroborated the officers’ placement in the course of the incidents reviewed. On August 12, 2012, officers can be seen in the video proceeding down the range to Inmate N’s cell and removing him from the cell. As he proceeds down the range to Inmate N’s cell, Mr. Legere stops and says something to Inmate G, who is in the shower. Inmate N is then walked down the range past the shower where Inmate G is showering. The officers hang back as liquid is thrown from the shower at Inmate N. Based on this, Mr. Huish concluded that Mr. Legere facilitated an assault on Inmate N. Mr. Huish drew this conclusion based solely on the video of the events as there is no audio.

[22]  Later in the morning of August 12, 2012, the video shows Inmate N being escorted back to his cell by CXs following behind him. As he passes Inmate G’s cell, a broom handle pokes out the open food slot. CX-I Raymond opens the door to Inmate G’s cell and is then joined by Mr. Legere, who takes the broom away from Inmate G and gestures, according to Mr. Huish, indicating by how much Inmate G missed striking Inmate N with the broom.

[23]  Mr. Huish authorized an extension of time for the investigation into the August 11 and 12, 2012, events (Exhibit 4, tabs 33 and 34) due to a significant problem tracking down Mr. Legere. The investigators needed his evidence for a complete report. The investigation report into the incidents of August 11 and 12 was initially received on October 16. It had issues and was not considered complete. The complete version of the report was received on October 23, 2012 (Exhibit 4, tab 42). At that time, Mr. Huish was the acting warden as Mr. Kemball had left the institution.

[24]  Mr. Huish reviewed the report with Mark Langer, the employer’s local labour relations representative. Further changes were requested to the report to clarify language concerning the handcuffing of Inmate B. The clarifications were made, and the revised report was received on October 29, 2012. Extensions were granted to the investigator various times throughout the investigation process via email.

[25]  When the grievors were initially suspended without pay, Mr. Huish was involved in an advisory capacity to Mr. Kemball. He shared his thoughts and his stand on the situation. Based on the evidence before them at the time, they had reason to believe that the safety and security of the institution and its inmates were in jeopardy. This opinion did not change with subsequent reviews (Exhibit 4, tabs 20, 25, 27, 30, 31, 35 to 37, 41, 44, 46 and 47).

[26]  According to Mr. Huish, several challenges arose with managing Inmate Z within the institution due to mental health issues for which the institution is not equipped. Use-of-force incidents involving this inmate were common. The inmate was also known to make false allegations against staff in order to get the warden’s attention. Likewise, Inmate N was known for making false complaints.

[27]  The video surveillance cameras in the Segregation Unit at the institution are synchronized. They record different views of the same areas. The cameras retain four to seven days of data. In the event of a use-of-force incident, the CMO pulls the video of the event and keeps it in his or her office. The use-of-force review process commences with the OSOR filed by the CX. The unit correctional manager then fills out his or her part of the use-of-force OSOR. Officer statement and observation reports are gathered from those who were involved with or witnessed the event. The post‑use‑of‑force medical report is filled out by the institution’s healthcare workers (Healthcare). All this information goes to the CMO, who reviews the video and the documents. The CMO does the initial assessment of whether use of force was appropriate in the circumstances. The initial assessment is presented in memo form to the warden and deputy warden. The next step is for the deputy warden to review the materials. If he or she agrees with the CMO, he or she so indicates on the CMO form or writes a separate memo. If nothing stands out on the initial review, a compressed use‑of-force review is used. A July 19, 2012, use-of-force review against Inmate Z was initially a compressed process (see Exhibit 25).

[28]  Roger Sehra was assigned to the institution for four months in 2012, to assist with clearing up a backlog of use-of-force reviews. He was on this assignment in August 2012. He stayed on following his assignment and took on the CMO role at the institution for an additional six months. During his career with the employer, he has filled the roles of CX, security officer, parole officer and correctional manager. He was involved with the introduction of the Correctional Officer Training Program. He described a CX’s role as staying alert and being interactive with the surroundings. A CX is to watch and analyze interactions and to report incidents to people who need to know about them. A CX is expected to behave professionally and to ensure that inmates have a safe environment in which to serve their sentences. There is no place for personal opinion or beliefs in the role of a CX. Part of this obligation is to fill out OSORs and to report anything outside the norm. If the CX asks himself or herself if he or she should write a report, then he or she should write the report.

[29]  A use-of-force report and an OSOR must be filled out anytime force is used against an inmate, regardless of whether it is a minor use of force. Documented reports are entered in the “Offender Management System.” A logbook is kept in each unit, where the routine activities and mood of the day are recorded for the next shift’s information. OSORs are also recorded to advise co-workers and the next shift.

[30]  The employer’s Code of Conduct (Exhibit 5, tab 67) lists the basic expectations and standards of conduct expected of CXs. The employer’s Code of Discipline (Exhibit 5, tab 68) explains what actions can be taken for violations of the Code of Conduct. Employees accept these conditions and agree to conduct themselves in accordance with these standards (Exhibit 5, tab 69). The Framework for the Prevention of Security Incidents (Exhibit 34) lists the employee’s obligations. Paragraph 10 of Exhibit 34 requires employees to report security incidents immediately, generally to the CMO’s desk, which is manned 24 hours a day. Exhibit 5, tab 13, outlines the duties and responsibilities of various staff members when dealing with security incidents. Annex B of that document is the “Situation Management Model,” which is taught to all CXs. It is a pictorial representation of how to deal with use-of-force incidents.

[31]  CXs are expected to resolve conflicts at the lowest level (see Exhibit 5, tab 73, paragraph 12(e)). They are to communicate to the point at which conversation becomes impossible when dealing with something that is out of the norm; the goal is to resolve a situation before an inmate is charged. This ensures the safety of all involved. However, incidents must still be recorded.

[32]  The Commissioner’s Directive on the Use of Force (Exhibit 5, tab 74) and the Commissioner’s Directive on the Use of Chemical and Inflammatory Agents (Exhibit 5, tab 75) stem from Exhibit 5, tab 73. These commissioner’s directives set out the particulars of the use of force when managing a situation. New recruits to the employer undergo a “Core Training Program” (CTP), during which these directives are reviewed and techniques for dealing with use-of-force incidents are taught. Both Mr. Legere and Mr. Derksen received this training (Exhibit 5, tabs 65 and 66).

[33]  As part of the CTP, recruits are taught how to escort handcuffed inmates. The CX is to be within arm’s reach of the inmate, one-half step behind and one-half step to the side. When two officers are escorting a handcuffed inmate, one is on either side, or one may be at the side and one at the back of the inmate. An inmate in handcuffs is at risk since he or she is unable to protect themselves in the event of a fall. The difference between a 1-on-1, 2-on-1 or 3-on-1 escort is the proximity to the inmate. The higher the number of CXs required to escort the inmate, the closer the proximity to the inmate should be. There is a heightened risk to the CXs in such escorts, as an inmate who requires a 3-on-1 escort may be assaultive or may be at risk of assault. In such a case, the CXs should have their hands on the inmate.

[34]  Mr. Sehra completed the use-of-force review of the July 21, 2012, incident involving Inmate Z. After the previous day’s incident involving Mr. Derksen and the same inmate, it was determined that the investigation should proceed as a “Level 2” review. Mr. Sehra reviewed the OSORs to ensure that they gave a good account of the incident. He determined that Mr. Derksen did not define what distractionary techniques he used against Inmate Z. The videotapes of the incidents were reviewed, which caused Mr. Sehra to have concerns, starting with CX Keith Paul stating that the inmate lunged when this was not what Mr. Sehra saw on the videotape. However, according to Mr. Sehra, the CXs’ perception is often different from what is seen on video.

[35]  Once Inmate Z is seen on the ground, Mr. Derksen arrives, applies a number of knee strikes to the inmate’s head and neck, and appears to grind his face into the floor. Three other CXs responded to the same incident, and Mr. Derksen’s actions did not seem reasonable, given the number of CXs there to deal with the situation. Knee strikes may be appropriate in certain circumstances when used as a distraction technique but are not applied to the inmate’s head or neck. Grinding an inmate’s head into a concrete floor with two hands is not a recognized technique for subduing an inmate. Mr. Derksen claimed he was applying a mastoid technique, which involves applying pressure to the mastoid bone behind the ear in order to secure the inmate’s compliance. This type of pressure-point technique was not used in this situation from what Mr. Sehra saw on the videotape.

[36]  The point of distractionary techniques is to gain compliance, to separate mind from body and to gain control of the situation. Once control is gained, pain is applied in the direction that the CX wants the inmate to go. Once the inmate complies, the technique is stopped, and the inmate gains relief from the pain. Mr. Derksen’s repetition of the techniques demonstrated in the videotape was ineffective as the inmate obtained no relief when he complied. Increased pain decreases compliance and increases resistance.

[37]  Mr. Sehra also conducted the review of the July 20, 2012, incident (Exhibit 26). He obtained the inmate’s version of the event and reviewed that day’s videotapes, the CXs’ OSORs and the addendum requested from Mr. Derksen concerning the distractionary techniques. At paragraph 10 of Exhibit 26, Mr. Sehra notes that Mr. Derksen still did not mention using knee strikes. In Mr. Sehra’s opinion, he could see nothing that would have made knee strikes necessary or reasonable in the situation. If using them is deemed reasonable, they are generally applied to large muscle groups such as the outside of the leg or some other soft area and not to the head or neck. The knee strikes Mr. Derksen used were excessive, given the number of officers on the scene. The initial knee strike might have been reasonable, but repeating them was not. They were detrimental to attempts to subdue the inmate by causing him more agitation.

[38]  The review of the August 11, 2012, incident involving Inmate B indicated that he was handcuffed just before the incident. He was being moved from the yard back to his cell, and there was no reason to remove the handcuffs until he had reached that point. Inmates are routinely handcuffed in the Segregation Unit to facilitate ease of movement from one location to another. This fact is relevant to determining that Mr. Legere was guilty of excessive use of force on that day because Mr. Ferguson asked Mr. Legere if he wanted the handcuffs taken off Inmate B immediately before the incident that day involving Mr. Legere and Inmate B.

[39]  The escort demonstrated on the video of August 12, 2012, in which Inmate N is escorted past the shower occupied by Inmate G, was not consistent with the escort training provided to Messrs. Derksen and Legere. However, on cross-examination, Mr. Sehra agreed that if situational factors allow it, a different configuration may be used in which two officers are at the inmate’s side and one officer is at the rear. The garbage can outside the cell and the pay phone in the way might have been factors in how the escort was conducted.

[40]  The practice at the institution is to leave the food slot open when an inmate is cleaning his cell. This allows him to throw garbage into a garbage can, which is placed outside the cell. It is also the practice at the institution not to touch an inmate being escorted (see Exhibit 4, tab 42, page 26).

[41]  Officers receive use-of-force training annually at the institution. What is not covered in the annual refreshers was covered in the CTP, which also covers what constitutes a safe distance when escorting an inmate. There are three main distances, which all require the officer to see the inmate from head to toe in his or her peripheral vision when standing in front of the inmate. Maintaining a safe distance is part of self‑defence.

[42]  Ms. Contini was appointed to chair the board of investigation convened for the August 11 and 12, 2012, incidents. Ms. Contini admitted that she has had no training on how to conduct a disciplinary investigation. Numerous extensions were granted due to the complexity of investigating two incidents involving numerous people. In addition, Mr. Legere was not available as shortly after his suspension without pay was imposed, he moved back to Nova Scotia. Eventually, he was interviewed via videoconference on October 12, 2012. The report was due on October 16, 2012, but was delivered on October 19, 2012. Further changes were required to the October 19, 2012, report, which was finally submitted to Acting Warden Huish on October 21, 2012 (Exhibit 4, tab 42). The key fact behind the delays was the interview with Mr. Legere.

[43]  Ms. Contini reviewed the package received from the employer, including the OSORs, the unit logs, the segregation post orders, the convening orders, the letters of suspension and many hours of videotape. She toured the site of the incidents. She interviewed the individuals listed at page 6 of the final report (Exhibit 4, tab 42). Mr. Weatherbee, her co-investigator, compiled the summaries of the interviews, which he drafted from notes taken during the interviews. Ms. Contini reviewed them for accuracy. Conclusions were not drawn from the statements. Ms. Contini determined whether a given statement was accurate. The rest of the information was drawn from the videos. The investigators did not show the footage to the CXs interviewed despite their request to see it in order to refresh their memories of the incidents.

[44]  According to Mr. Legere’s interview, Mr. Ferguson asked him if he should remove Inmate B’s handcuffs in response to Inmate B’s demands to have the handcuffs removed, to which Mr. Legere responded, “Whatever.” Mr. Legere stated that he did not mean this as agreement that Mr. Ferguson should take off the handcuffs. Once Inmate B’s hands were free, he lunged at Mr. Legere. According to Ms. Contini, the video of the incident shows a very slow response by the other CXs on duty to an assault on an officer. According to her, this indicates that they knew what was going to happen and that Mr. Legere was not assaulted. The video shows Inmate B or Mr. Legere in an agitated state; it is unclear which of them it is. Ms. Contini then testified that there is no evidence on the video that the officers knew what was going to happen. The officers interviewed said that it was not normal practice to remove handcuffs from an inmate being escorted; nor is doing so within policy.

[45]  Ms. Contini’s conclusion was that the follow-up actions of the officers proved that they were aware of what was about to happen. Mr. Legere was prepared to repel Inmate B’s attack. He struck Inmate B twice; one strike is clear on the video. Ms. Contini also believes that Mr. Legere kicked Inmate B. The board of investigation found that Mr. Legere was guilty of excessive use of force. His response was not the safest and most reasonable given the number of officers there at the time. It was not necessary to strike Inmate B.

[46]  The Inmate B incident was not reported. Mr. Ferguson directed the other officers not to file OSORs, and they followed his order. The videos from the day show that the group met in “J” office to talk about filing the report. They decided to keep it from the institution’s management. Officer OSORs are to be completed independently. There is sufficient evidence based on similar use of terminology and consistent language in the reports filed to demonstrate collusion among the officers involved in completing the reports. Ms. Contini did not take notes at any time in the investigative process. She relied on Mr. Weatherbee to do it. He also created the drawings attached to the final report (Exhibit 4, tab 42) as “Annex A.” Some quotes cited by the report’s authors were suggestions made to officers being interviewed and are not in fact statements of made by the officers being interviewed. The best evidence would be the audio tapes of the interviews.

[47]  Throughout the investigation, Mr. Derksen asserted that he was not present during the Inmate B incident. According to Ms. Contini, the evidence and the videos did not support his assertion. The videotapes show Mr. Derksen passing by the J “bubble,” so the only place he could have been on August 11, 2012, when Inmate B was assaulted, was in the servery doorway. Mr. Derksen claimed to have been moving from J range to K range. The investigators never looked at the video from J range (Exhibit 49); they looked only at the K range video.

[48]  Throughout the investigative process, all the officers involved were significantly reluctant to tell the complete truth about what happened. According to Ms. Contini, the investigation was a “tortuous process” of obtaining information from each officer. Mr. Legere ultimately admitted to striking Inmate B with an open hand. Ms. Contini determined that that was not true on the balance of probabilities after reviewing the video.

[49]  Ms. Contini and Mr. Weatherbee were also asked to investigate the August 12, 2012, incident involving Inmate N. A review of the video shows the escorting officers hanging back while Inmate N passes the shower stall containing Inmate G. Ms. Contini stated that hanging back when escorting an inmate is normal at the institution. According to Ms. Contini, the distance between the escorting officers and Inmate N provided the opportunity for the assault and ensured that the officers were not hit with the liquid.

[50]  The shower routine at the institution normally begins at the end of the range. In this case, that would have been with Inmate N. However, on cross-examination, Ms. Contini admitted that she was unfamiliar with the shower routine at the institution. She was unaware that shower routines could be altered when an inmate is in a 3-on-1 escort and there are insufficient staff members available to conduct the escort, as was the case on August 12, 2012.

[51]  On August 12, 2012, the routine began with the head of the range, Inmate G. In Ms. Contini’s opinion, this was planned and was the only way the assault could have occurred. The OSORs filed that day state that nothing was unusual about the shower routine. However, when interviewed, those involved remembered specifics of that day. The investigators found this odd. Mr. Derksen initially said he saw nothing, but in his interview, he remembered Inmate G yelling something from the shower and saw three drops of liquid on Inmate N’s shoulder. If Mr. Derksen thought that this was significant enough to tell the board of investigation, then it was important enough to include in his OSOR.

[52]  Mr. Legere could not remember the discussion with Inmate G when he walked by the shower on his way to remove Inmate N from his cell.

[53]  The investigators could not conclude what the liquid was that came out of the shower. The allegation was that it was a bodily fluid. However, Inmate N did not talk to the CXs about the fluid at the time or later on.

[54]  The investigators toured the Segregation Unit at the institution. Ms. Contini described the shower as having open bars but stated that she did not recall water on the floor outside it.

[55]  None of the escorting officers returning Inmate N to his cell after his shower remembered seeing the broom handle poking out of the food slot, although after a lengthy interrogation process Mr. Legere admitted he did see it sticking out of the food slot. Mr. Ferguson asked Mr. Legere if he had seen the broom handle come out of the food slot.

[56]  The officers’ behaviour in the aftermath of an assault on an inmate was inconsistent with expectations. At the very least, Mr. Legere should have closed the food slot, as the officers could have been assaulted by the broom as they approached Inmate G’s cell. CX Raymond was the first officer to approach Inmate G’s cell, but the investigators concluded that there was no wrongdoing on his part.

[57]  Based on everything, Ms. Contini concluded that Messrs. Legere and Derksen were less than honest about the incident, based on the context of assessing the entirety of the information and on how it came out.

[58]  The camera that filmed the incident on August 12, 2012, is located at the end of the range and is higher than the officers’ viewpoint. It does not see what the officers see.

[59]  CXs Pierangeli, Bains and Paul were all interviewed by Ms. Contini and Mr. Weatherbee as part of the investigation into the events of August 11 and 12, 2012. Mr. Pierangeli and Mr. Bains removed Inmate B from the yard. He was being escorted through the Segregation Unit common area on the way back to his cell when they encountered Mr. Ferguson and Mr. Legere. Mr. Ferguson engaged Inmate B in a conversation. Inmate B demanded that Mr. Ferguson remove his handcuffs, which Mr. Ferguson did. Inmate B then lunged at Mr. Legere, swinging his fists. Mr. Legere struck Mr. B, who then stumbled backward. Inmate B recovered and lunged at Mr. Legere again. Mr. Legere struck Inmate B again with both arms outstretched. Inmate B was then taken to the ground, handcuffed and escorted to his cell.

[60]  Mr. Pierangeli did not remember the details of the conversation between Mr. Ferguson and Inmate B although he did remember Inmate B making more than 4 but less than 10 requests for Mr. Ferguson to remove the handcuffs. They both appeared calm while talking to each other. Inmate B and Mr. Ferguson were about 15 feet away from Mr. Legere. Mr. Pierangeli did not recall telling the investigator that Inmate B was swearing, although it is possible. He did not recall Inmate B saying “Fuck you” to Mr. Ferguson, but he did remember the request to have the handcuffs removed. Mr. Derksen was not there when the handcuffs were removed.

[61]  Mr. Pierangeli recalled meeting with other officers in the J office following the Inmate B incident. However, they did not meet specifically to discuss the incident. Present were Mr. Legere and Mr. Ferguson, and the message that they were meeting was relayed to Mr. Paul, who was in the J bubble at the time. Since Mr. Legere was fine, Inmate B was fine; Mr. Ferguson directed that no report be filed concerning the incident. This was a poor decision, which Mr. Pierangeli regretted; he should have filed an OSOR. The incident became the topic of conversation throughout the institution, and Messrs. Ferguson, Derksen, Paul, Bains and Pierangeli decided to meet in a Superstore parking lot to decide how they should deal with the situation. They wondered whether they should go to the Aggasiz, B.C., Royal Canadian Mounted Police detachment and make a statement since an investigation was underway into the use of force against Inmate B. They decided not to as the investigating officer was probably not on duty, and they could not get a lawyer to go with them. The CXs still did not file an OSOR. They decided not to until asked. The officers met a second time at Mr. Ferguson’s house, and a bargaining agent representative was invited. They again discussed filing an OSOR for the events of August 11, 2012.

[62]  By this time, Mr. Pierangeli had already filed an OSOR. He had been contacted by his correctional manager and had been ordered to fill out the report, as had the others involved. When the officers did fill out their reports, they were put in separate offices. The correctional manager sat with them while they wrote their reports. There was no advance agreement as to what to put in each report. It was coincidence that they all used words such as “calm and compliant” when being interviewed by Ms. Contini. The interviews were lengthy, stressful and confusing. Mr. Pierangeli stated that Ms. Contini was often agitated throughout the process when the answers she received were not what she wanted, an allegation which was not refuted by the employer.

[63]  Mr. Pierangeli received a written reprimand for his role in the use of force on Inmate B. He was not reassigned to other duties or suspended pending the completion of the investigation by Ms. Contini and Mr. Weatherbee.

[64]  Mr. Bains testified that he was involved in the August 11, 2012, incident. On August 11, he and Mr. Pierangeli removed Inmate B in handcuffs from K yard. It was business as usual. When Mr. Bains got to the top of the stairs, he saw Inmate B talking to Mr. Ferguson, which was not normal, in Mr. Bains’ opinion. He stepped to the side near the correctional manager’s office and did not pay attention to what was being said. Everything seemed fine, and he was preoccupied with completing other routines. Mr. Bains was standing in the K unit entry door to the servery by the upper K stairs and was approximately 10 feet away when Inmate B asked to have the handcuffs removed. He heard Inmate B ask Mr. Ferguson to remove his handcuffs, which Mr. Ferguson did.

[65]  Mr. Bains then saw Inmate B lunge at Mr. Legere. The two collided, and Inmate B fell back. Inmate B got up and jumped at Mr. Legere again. This time, Mr. Legere hit Inmate B on the side of the head in self-defence with what Mr. Bains believed was a closed fist. Inmate B fell to his knees, and Mr. Legere put him on the ground, where he was handcuffed. Inmate B was not struggling or fighting at the time. Mr. Pierangeli and Mr. Derksen came and assisted with handcuffing Inmate B. Mr. Derksen was not present when the handcuffs were taken off.

[66]  Mr. Bains was present in the J office when Mr. Ferguson directed that no OSOR be filed. He was also part of the group that met in the Superstore parking lot and at Mr. Ferguson’s home. He did not file his OSOR until asked, which was the wrong thing to do. He should also have called for Healthcare to visit Inmate B following the incident.

[67]  During Mr. Bains’ interview, Ms. Contini hammered him with repeat questions, which he was unable to answer. Since the investigator continued to demand answers, he made them up. Ms. Contini screamed at the bargaining agent representative who accompanied Mr. Bains and told him to shut up. In his OSOR, Mr. Bains described Mr. Legere hitting Inmate B with a closed fist, but after being hammered by Ms. Contini, he said that Mr. Legere hit Inmate B with a haymaker. He tried to correct this statement, but the investigators did not note the correction. The interview lasted approximately five hours, during which Ms. Contini continued to ask the same question over and over until she got the answer she wanted. Her eyes watered in frustration. She had dramatic mood swings, which confused Mr. Bains. She counselled him to think about his family and to do the right thing. He was not allowed to see the video to which Ms. Contini referred during the investigation. Mr. Bains met with the investigators twice after the initial five-hour interview. He asked to meet with the investigators since he remembered something he thought needed to be added and was then subjected to another two to three hours of hammering — being asked the same question over and over.

[68]  Mr. Bains received a written reprimand for his involvement in the use of force on Inmate B.

[69]  On August 11, 2012, Mr. Paul was in the control post on the Segregation Unit and did not hear the discussion between Inmate B and Mr. Ferguson. He saw Inmate B lunge at Mr. Legere and saw Mr. Legere respond with a punch, following which Inmate B went down. Inmate B, Mr. Ferguson and Mr. Legere were the only ones in the servery at the time. Mr. Paul did not report the incident because after talking with the others working that day, it was agreed that it was over, that Inmate B regretted his actions and that it was best to resolve the situation at the lowest level.

[70]  Mr. Paul met with Mr. Bains, Mr. Pierangeli, Mr. Ferguson and Mr. Derksen in the Superstore parking lot to discuss filing an OSOR. The event was common knowledge in the institution, and everyone involved realized the severity of the situation and that they had messed up. The group decided not to do anything until they were directed to write an OSOR. Mr. Paul was also present at the meeting in Mr. Ferguson’s home. Mr. Paul could not explain the use of similar language in the OSORs that were filed. He wrote his by himself without collusion with the others. There was no exchange with the other officers on what to include in the reports or what was to be said to the investigators.

[71]  In his meeting with the investigators, Mr. Paul admitted it was unusual for Mr. Ferguson to remove Inmate B’s handcuffs. It was against policy. The words “consensual fight,” used to describe what happened following the removal of the handcuffs (Exhibit 4, tab 42, page 23), were the investigator’s words, not his. He did not recall saying that Mr. Legere knew what was coming. Mr. Paul identified Mr. Langer and Brenda Vetter, who were also involved in the investigation and disciplinary processes, as representatives from the employer’s local labour relations office.

[72]  Mary Danel was asked to investigate the July 20, 2012, use-of-force incident involving Inmate Z (Exhibit 4, tab 38). Her report was due November 20, 2012. She was unaware the Messrs. Derksen and Legere were suspended without pay. She did not meet the deadline. The contact information provided for Mr. Derksen was inaccurate, and Mr. Legere did not have voice mail, so she could not leave a message. A series of extensions were requested due to illness of the investigator. The final report was provided to Acting Warden Mark Noon-Ward on January 17, 2013 (Exhibit 5, tab 55).

[73]  The incident she was to investigate occurred when Inmate Z was being escorted to the showers on July 20, 2012. At the time, he was handcuffed in the front. He charged at Mr. Derksen. Mr. Derksen put Inmate Z to the ground, and Mr. Legere applied oleoresin capsicum (OC) spray. In the video, Mr. Derksen can be seen using knee strikes.

[74]  Messrs. Derksen, Legere, Pierangeli and Becker were all involved in the incident. Mr. Legere’s use of OC spray was determined appropriate. Mr. Derksen’s use of knee strikes was determined excessive. The OSORs that the CXs filed were not completed as required. Mr. Derksen did not clearly identify what he used as force and why he used it. Inmate Z stated that the officers “put the boots” to him. He clearly identified the officers involved when he saw the video of the incident.

[75]  The video demonstrated that the officers did not use boots. Mr. Derksen is shown applying knee strikes to Inmate Z’s left side while the inmate is handcuffed in front. He is face down on the floor with his face pushed to the wall and his hands underneath him. Initially, two CXs are involved; then it is four. The first knee strike was justified as a distraction technique. The second and third had no impact and actually agitated and aggravated the inmate. When the video was shown to Mr. Derksen, he acknowledged that he used knee strikes as a distractionary technique, as taught in the CTP. It was a spontaneous use of the tools available to him at the time. Mr. Derksen claimed that the use-of-force training he was provided is not appropriate for dealing with inmates like Inmate Z.

[76]  As part of her investigation, Ms. Danel followed up with Mr. Sehra on use‑of‑force training. In his opinion, knee strikes are not taught as part of the CTP as they are an inappropriate use of force.

[77]  Mr. Derksen’s first OSOR (Exhibit 3, tab 4) was lacking. A second was requested (Exhibit 3, tab 9), to clarify his version of the events. Neither report identified what distraction techniques were applied. He omitted the full detail in all his reports. The CXs could not distinguish between the incidents involving Inmate Z, and their reports were not detailed to enough to assist in the investigation. Inmate Z was renowned for filing complaints alleging excessive use of force by CXs. He admitted to lunging at Mr. Derksen.

[78]  Robert Podesta investigated the use-of-force incident of July 21, 2012, at the request of Mark Kemball. Cheryl Arsenault assisted him. He has had training in the use of force and has personally been involved in use-of-force incidents during his career. He has had extensive training in use-of-force techniques. In 2002, he was responsible for reviewing all use-of-force OSORs regionally. He conducted full reviews of each case and provided feedback on compliance to senior management. He was presented with a memo and convening order requesting the investigation of the use-of-force incident involving Inmate Z that occurred on July 21, 2012 (Exhibit 4, tab 28). The due date for his report was November 1, 2012; the deadline was met. Before interviewing witnesses to the event, the investigators collected all the reports and videos, identified the people to be interviewed, and consulted with experts on the use of force. The investigators did not review the post-use-of-force video. Mr. Podesta was aware that Healthcare examined the inmate as part of the post-use-of-force follow-up. Bruises were noted, but Healthcare could not be sure if they were incurred that night or the night before.

[79]  On July 21, 2012, Inmate Z was being moved from the segregation yard to his cell when the use of force incident involving Mr. Derksen occurred. Inmate Z has a history of disruptive behaviour and problems with staff. He has been moved many times between the institution and the Regional Treatment Centre. Inmate Z is a small man who weighs about 120 pounds.

[80]  Mr. Podesta and Ms. Arsenault interviewed Inmate Z and obtained his perception of what occurred. He was hesitant to speak to the investigators as he was unsure as to the purpose of the interview. He has a very short attention span, so to focus him on the July 21, 2012, use-of-force incident, the investigators used the video to keep him on track. He was matter-of-fact and clear about answering questions related to Mr. Derksen. He was very emotional when discussing the role Mr. Paul played in the event of July 21, 2012, which led the investigators to conclude his evidence in this regard was less than credible. Otherwise, Inmate Z’s recollection of the events of that day was very acute. He admitted that he had adopted the tactic of initiating a use of force in order to be sprayed with OC spray so he could get a shower and see a correctional manager. This was a documented and known tactic that Inmate Z deployed frequently. Mr. Derksen said that he was aware of it since it had been shared with the Segregation Unit officers at briefings.

[81]  Inmate Z was surprised that the officers did not use OC spray against him on July 21, 2012. That night he wanted to talk to a correctional manager about lights being left on at night and to complain that he was not given a shower when he wanted one.

[82]  Mr. Paul confirmed that Mr. Derksen delivered knee strikes to Inmate Z’s head. His evidence was lacking in the areas that were detrimental to him; for example, his description of how he got Inmate Z to the ground was inconsistent with what was shown on the videos.

[83]  Likewise, Mr. Derksen’s evidence contained omissions and vague areas when his actions were questionable. He was explicit when his evidence was consistent with why he acted as he did. A great deal of detail supported his actions. However, detail was absent when it was required to explain critical issues raised by the incident. For example, his recall of the sequence of events was explicitly consistent with the videos when he discussed why he used knee strikes, except that he did not remember where the knee strikes landed. He thought they landed on the inmate’s shoulder or upper body when they clearly landed on his head, according to the video. Mr. Derksen explained that he used knee strikes as a distraction technique in order to gain compliance from Inmate Z. He expected Inmate Z to face in the other direction. He told Inmate Z to turn his head in the other direction. Inmate Z did not comply, so the distraction technique was applied.

[84]  According to Mr. Podesta, when Mr. Derksen was applying knee strikes, three officers were trying to gain control of Inmate Z: Mr. Murrell had his legs, Mr. Paul had his wrists and Mr. Derksen was trying to control the inmate’s head. When Mr. Derksen arrived, Inmate Z was handcuffed in the back and was wearing a spit mask, and his legs were controlled. There was no risk to Mr. Derksen; he could have moved away out of Inmate Z’s reach had he tried to bite him. The risk of Inmate Z spitting at him was minimal as he could not turn his head and was wearing a spit mask.

[85]  The degree of force required was inconsistent with that applied. Seven knee strikes were delivered, and 66 seconds were spent grinding Inmate Z’s face into the tile floor. At the end of the incident, Mr. Derksen did not secure the spit mask, which was his stated reason for applying knee strikes and mastoid pressure. Mr. Podesta had concerns over the amount of body weight used in applying the mastoid-pressure-point technique. He described it as more akin to the amount of pressure required to perform cardiopulmonary resuscitation. When properly performed, the mastoid pressure point technique involves pushing a knuckle or thumb behind the jawbone. The point of pressure-point techniques is to cause varying degrees of pain to gain compliance from an inmate. The full body weight being brought to bear on the inmate’s head would have caused very intense pain. Mr. Podesta also testified that it was illogical to apply distraction techniques to the shoulder, as described by Mr. Derksen, as it was unlikely to create pain sufficient to gain compliance. Finally, Mr. Derksen made no ongoing assessment to determine if the use of force was still needed or effective.

[86]  Mr. Podesta reviewed the reports filed and determined that they were lacking the information that an officer is required to share when reporting a use-of-force incident. Mr. Derksen’s original report (Exhibit 4, tab 6) was very vague. His addendum was similarly vague (Exhibit 4, tab 14). He commented many times during the investigation that Inmate Z should be at the Regional Treatment Centre because of his psychological issues. Inmate Z was a difficult inmate to deal with. Mr. Podesta concluded that Mr. Derksen was dishonest with him during the interview. His omissions in critical areas were detrimental to Mr. Derksen’s best interests.

[87]  As assistant warden, operations, Mr. Podesta was aware that the bargaining agent had expressed concerns over the self-defence refreshers given to officers at the institution. Mr. Derksen also raised the issue in the course of his interview even though he was fully compliant with the national training standards. Proficiency in use-of-force techniques comes only through practice. Mr. Podesta was aware that Mr. Derksen had been diagnosed with post-traumatic stress disorder within the past year.

[88]  Following the July 21, 2012, use-of-force incident, management sent out directions on handling Inmate Z.

[89]  Mr. Paul testified concerning the incident of July 21, 2012. He stated that he gave Inmate Z directions to step in front of him for a pat down. Inmate Z did not do as directed but rather lunged at Mr. Paul, who then took him to the ground. He was handcuffed at the time. Mr. Paul took control of the inmate’s torso while others responded. He had the inmate’s left arm or hand in a wristlock. Officers Derksen and Murrell responded. Mr. Murrell took over control of the inmate’s feet while Mr. Derksen was on his head, applying distraction techniques. Mr. Paul saw Mr. Derksen apply three to four knee strikes to the inmate’s head. He did not see Mr. Derksen apply a mastoid technique. He was not actively watching what Messrs. Murrell and Derksen were doing.

[90]  Inmate Z is squirmy, very flexible and able to do things with his body that other inmates cannot do. When handcuffed behind his back, he can bring his hands around and put his finger in his ear. He can slip his cuffed hands from back to front and front to back. However, on July 21, 2012, Inmate Z was unable to slip his hands around. Mr. Paul filed charges against Inmate Z for lunging at him following the July 21, 2012, incident.

[91]  William Thompson has been the warden of the institution since November 2012. He made the decision to continue Mr. Legere’s suspension without pay once he was briefed on the allegations and understood why the suspension was imposed (Exhibit 5, tabs 54 and 57). There was no new information to change the risk level assigned to Mr. Legere. The safety and security of the institution was paramount; the employer had lost trust in Mr. Legere because of the uncertainty as to his involvement in the various incidents. The process for reviewing suspensions without pay involved looking at the risk and the severity of the issue and whether there were trust issues, the risk posed by the presence of the employee to equipment and employer information, what jobs were available inside and outside the institution, and what, if anything, had changed since the last review.

[92]  Mr. Thompson convened a disciplinary hearing (Exhibit 5, tab 54) on the charges against Mr. Legere for January 16, 2013. At the hearing, he discussed with Mr. Legere the issues Mr. Legere had with Ms. Contini’s report. Mr. Thompson issued his decision by letter on February 20, 2013 (Exhibit 5, tab 61). Mr. Thompson terminated Mr. Legere’s employment by letter (Exhibit 5, tab 61) after having considered that, among other things, Mr. Legere had a clean disciplinary record. The assault on August 11, 2012, involved handcuffs being removed, which was contrary to policy, and no OSOR was submitted until Mr. Legere was told to submit one. In addition, the inmate or anyone else in the area could have been injured. It was an unnecessary use of force occasioned by the removal of the inmate’s handcuffs. Mr. Legere’s lack of reporting violated the core value of truthfulness. He was evasive when he was before the investigators and at the disciplinary hearing. He facilitated the assaults of August 12, 2012. He advised the inmate in the shower that Inmate N was coming. He also allowed Inmate N to walk uncontrolled up the range past the open food slot, knowing that the inmate in the cell had a broom even though it was a common practice in the Segregation Unit at the institution to leave food slots open while an inmate cleaned his cell.

[93]  Mr. Thompson testified that he was disgusted by the video of the broom handle incident. He expected more of the CXs in his institution. Inappropriate escort techniques are a threat to the safety of inmates and officers. Mr. Legere claimed to be ignorant of anything happening with respect to the shower and the broom handle. He did not believe that there was anything worthy of reporting. This belief was contrary to the findings of the investigators and the videos. Little credibility was given to Mr. Legere’s claim that he had no choice about removing the handcuffs; he felt that he could not go against Mr. Ferguson, a senior officer. From Mr. Thompson’s point of view, Mr. Legere could have gone against Mr. Ferguson; he just did not choose to. As to the post-traumatic stress disorder evidence, Mr. Legere did not submit a doctor’s report supporting the diagnosis. Nothing made Mr. Thompson believe that Mr. Legere was impaired and unable to follow policies. As a result, Mr. Thompson had no confidence in Mr. Legere; he had lied and had failed to follow the employer’s Code of Conduct and the training he had received.

[94]  Similarly, Mr. Thompson was involved in continuing Mr. Derksen’s suspension without pay (Exhibit 4, tab 48). Although the disciplinary hearing into the allegations against Mr. Derksen was scheduled for December 19, 2012 (Exhibit 4, tab 50), it did not occur, as Ms. Danel’s disciplinary investigation report was not available. During this period, Mr. Derksen remained on suspension without pay (Exhibit 5, tabs 52, 53, 58, 59, 62 and 63) pending the completion of the disciplinary investigation and the hearing. At the time of the disciplinary hearing, Mr. Thompson was unaware of the exculpatory video submitted by Mr. Derksen which Ms. Contini refused to consider.

[95]  Like Mr. Legere, Mr. Derksen’s employment was terminated by Mr. Thompson retroactive to the original date of the suspension without pay.

[96]  Mr. Thompson was concerned with the reports filed by Mr. Derksen and their similarity to other reports related to the same incidents filed by his coworkers. Mr. Derksen did not initially file reports and those that he did eventually file were missing information. Mr. Derksen provided false information to the investigators, denied the incidents in question happened, was evasive and in general did not explain his actions. On August 12, 2012, he knew what was about to happen as he was a significant distance behind Inmate N and clearly saw liquid come out of the shower. On July 21, 2012, while Inmate Z was in a prone position, he applied inappropriate distraction techniques. He told the investigators that the knee strikes were appropriate in the circumstances and that the face rubbing was a mastoid pressure-point technique. Mr. Thompson did not see any of this when he reviewed the videos.

[97]  On the videos of July 20, 2012, Mr. Derksen was seen delivering unnecessary knee strikes and lifting his knee off the ground to ensure full momentum. Inmate Z was handcuffed at the time. In his report, Mr. Derksen stated that he applied distraction techniques but never specified what type.

[98]  There was no evidence that Mr. Derksen suffered from post-traumatic stress disorder, which would have impaired his ability to make decisions or follow policies. Mr. Thompson reviewed all aspects of the allegations against Mr. Derksen and any mitigating factors. Mr. Thompson stated that he could not trust that Mr. Derksen would react differently in a similar situation. Consequently, Mr. Derksen’s employment was terminated.

[99]  John Randle testified on behalf of the grievors. He is the president of the bargaining agent’s local at the institution. The bargaining agent raised concerns with the employer with the recertification process for CXs. They were raised at both the local and regional labour management committee meetings. The personal safety refresher training (PSRT) occurs once a year. It lasts six hours, during which one module is covered. The training has four or five modules that are rotated, so, for example, handcuffing techniques are taught once every four or five years. In the bargaining agent’s opinion, all modules should be covered annually.

[100]  Cameras are located everywhere in the institution: in every living unit, tier, common area, common hallway and pathway, the visiting area, and in the courtyard, there is an “eye in the sky”; they are on fences, at entrances, scattered throughout the Segregation Unit, etc. By Mr. Randle’s estimation, the number of cameras in the institution exceeds 100.

[101]  The showers in the Segregation Unit are approximately 3 feet wide by 3.5 feet deep with a door of bars on the front. Water comes out of the showers on a regular basis. It is not uncommon for the floor in front of the showers to be wet. It is expected that water will come out of the shower when it is in use.

[102]  When conducting a 3-on-1 escort on the Segregation Unit, officers do not apply hands to the inmate unless they are going up or down stairs or the inmate is volatile. Mr. Randle is aware of no rule about moving inmates past an occupied shower so long as a protective custody inmate and general population inmates are not able to interact with each other physically. The shower units are containment units.

[103]  Mr. Randle, who was assigned to work the Segregation Unit at the institution, is familiar with Inmate Z, who is permanently housed in the Segregation Unit as he is not accepted in any other population at the institution. He has severe mental health issues, which means that he should not be housed at the institution. Inmate Z is renowned among correctional staff for making false allegations and for filing complaints against CXs. Mr. Randle is also familiar with Inmate N, who also makes false allegations against CXs. Inmate N has been reported to the Security and Intelligence Office at the institution for attempting to blackmail CXs.

[104]  Mr. Randle met with Messrs. Kemball and Huish concerning the length of time it took to complete the investigation. He recognized that Mr. Legere’s move to Nova Scotia created problems with contacting him, and the bargaining agent was frustrated by the number of delays and extensions that occurred. Messrs. Kemball and Huish told Mr. Randle that this would not have an impact on the other officers being investigated. Mr. Randle encouraged all CXs involved to be upfront and to participate in the investigation. Mr. Huish told Mr. Randle that timelines were missed because of the complex nature of the investigation. 

[105]  In his role as a bargaining agent representative, Mr. Randle was present when Mr. Derksen was suspended without pay. He requested that Mr. Derksen be reassigned to a non-contact post. Mr. Kemball and Mr. Huish told him that Mr. Derksen could not be trusted and that therefore he would be suspended. Mr. Randle continued to represent the grievors throughout the investigation and disciplinary processes.

[106]  Helinant Raymond was one of the CXs accused of assaulting Inmate N on August 12, 2012. He testified that nothing was out of the ordinary before the shower routine began. Inmate N required a 3-on-1 escort and had to wait until staff were available. There is no set standard for the conducting a 3-on-1 escort other than that three people are required.

[107]  The tier where Inmate N is housed is narrow. People walking on the tier will normally proceed in single file. When escorting Inmate N to the shower, approximately six feet separated each officer and Inmate N. This was not out of the ordinary; according to Mr. Raymond, it was always done that way.

[108]  Inmate N did not say or do anything as he passed the shower. He did not react. Likewise, the escort to return him to his cell was routine. Inmate N said nothing about the broom; nor did Mr. Raymond hear anything said by Inmate G. Inmate N did not react to the broom being poked at him. To the best of Mr. Raymond’s recollection, Mr. Legere did not say anything to Inmate G.

[109]  Mr. Raymond did not file an OSOR concerning the events of August 12, 2012. He was never approached by institution management for a report. He did see the videos when Ms. Contini and Mr. Weatherbee interviewed him.

[110]  Christopher Evans testified concerning the addendum that Mr. Derksen was requested to place in the OSOR about the Inmate Z incident. According to Mr. Evans, who witnessed the conversation between Mr. Sehra and Mr. Derksen, Mr. Sehra asked for the addendum but refused to allow Mr. Derksen to view the videotapes of the incidents in order to refresh his memory. Mr. Sehra indicated that he wanted the addendum done before the end of the day and walked out of the office. As Mr. Derksen’s shop steward, Mr. Evans advised Mr. Derksen not to write the addendum without seeing the video.

[111]  Shane Lizotte has been a staff trainer for the employer for the past 15 years. He testified that the PSRT is the two-week self-defence training from the CTP broken up into six modules, one of which is offered each year. Self-defence training is meant to allow people to protect themselves in the event of a spontaneous attack. Depending on the seriousness of the attack, the response could be anything from distraction techniques to takedowns. The officers do not train on strikes. Pictures of various strikes are in the manual, with explanations. No training is provided on using arm bars on a handcuffed inmate. The focus of the training is base foundation skills.

[112]  When moving a handcuffed inmate, officers are taught two types of escort techniques: one for a compliant inmate, and one for a non-compliant inmate. Low‑profile wristlocks are used to control compliant inmates without pain. A high‑profile wristlock is used when an inmate is non-compliant. The choice of which to use depends on the CX’s perception of the situation. Many choose not to use wristlocks based on their experience with a given inmate. The PSRT speaks to how they are applied, not when. The “when” is left up to the CX’s perception.

[113]  The aim of any strike is to repel an attack and to do so effectively; officers should be trained on strikes. The rule of thumb when striking an assailant is to avoid hard parts of the body to avoid self-injury. When subduing an assailant, CXs are taught not to lie down on top of the assailant so as to avoid diaphragmatic shock, which prevents the assailant from breathing. The easiest way for an officer to avoid using force against an inmate is to avoid the inmate’s centre line of attack. This allows the officer to use momentum against the inmate.

[114]  Juan Verville has been a CX for the past 14 years. He is employed as a correctional manager and was Mr. Derksen’s supervisor. He found Mr. Derksen very professional at all times and had no concerns with how he followed directions. He had no concerns or issues with Mr. Derksen’s behaviour towards inmates while he worked in the Segregation Unit.

[115]  Mr. Verville testified that when escorting inmates on a 3-on-1 basis in the Segregation Unit, the officers involved are given complete discretion to determine the distance between them and the inmate, depending on factors such as the inmate’s mood, his previous interactions with CXs, and his behaviour on previous shifts. The circumstances will determine the reasonable distance to keep from an inmate when conducting an escort. If the inmate is in a mood or demonstrating behaviour that may pose a threat to the officers, then they have the discretion to distance themselves from the inmate. A CX has the discretion to be more than an arm’s length away when escorting inmates on the Segregation Unit. If the officers are too close to the inmate, the inmate may react. It is reasonable for the officers to have a complete head-to-toe peripheral of the inmate being escorted.

[116]  When a CX is walking down a range, it is common for the CX to stop and address an inmate in a cell. The fundamental duty of CXs is to act with integrity, to not to abuse inmates or use excessive force, to be alert in the workplace and to report incidents. CXs are required to report the most significant incidents on the Segregation Unit. Not all incidents require filing an OSOR.

[117]  Glen Carlson has worked in the Segregation Unit at the institution for the past 2½ years. When conducting a 3-on-1 escort of an inmate who is handcuffed in behind, there is no set distance for the CXs to keep from the inmate. Rather, the distance is based on personal preference and personal safety. When escorting an inmate to the shower while another inmate is already in a shower, it is not unusual to encounter water as it splashes out of the front of the shower.

[118]  Mr. Carlson was shown Exhibits 16 and 25 (videotapes of the incidents in question) and was referred to Exhibit 5, tab 73 (Commissioner’s Directive 567 -Management of Security Incidents). He described a use-of-force incident in which he had been involved with his partner, Will Dunn. The inmate lunged at Mr. Dunn. Physical handling was applied, and the inmate was taken down. Mr. Carlson applied knee strikes to get the inmate to comply and put the inmate’s hands behind his back so he could be handcuffed. Mr. Carlson received no feedback or criticism for his use of knee strikes; nor was he required to fill out an addendum to his OSOR.

[119]  Mr. Carlson described inmate Z as having a reputation for assaulting staff in order to see a correctional manager or to receive OC spray to get a shower. In the spring of 2012, this was well known at the institution. When dealing with him, a safe distance is two arm’s lengths to the side so that he can be seen peripherally. The accepted triangular shape for escorting a 3-on-1 inmate is not always possible if the halls are narrow or obstructed.

[120]  Richard Khan has worked for approximately 7 of his 10 years at the institution in the Segregation Unit. When conducting a 3-on-1 escort within the Segregation Unit, the standard applied is personal safety. There is no standard distance between the CXs and the inmate being escorted. In some areas, inmates are escorted in single file due to narrow passageways. Droplets of water are not unusual when an inmate is moved past an occupied shower. When conducting a 3-on-1 escort, most times officers use a triangle formation unless moving through doorways or going downstairs.

[121]  Food slots stay open on days when cell cleaning is scheduled so that inmates who have swept their cells can drop the garbage into the garbage can located outside their cell doors below the food slot. Shower routine and cell cleaning occur on the same day and at the same time on the Segregation Unit.

[122]  The CXs assume that all inmates in segregation are assaultive. If one is confined in his cell with a weapon, officers enter the cell to retrieve the weapon. There is no set practice for retrieving a weapon. How a weapon is retrieved depends on the officer’s rapport with the inmate and the inmate’s demeanour.

[123]  John McKay testified as an expert on the use of force in policing, on use-of-force investigations and on the use of force within the context of the Canadian Criminal Code (R.S.C. 1985, c. c-46; “CCC”) on behalf of the grievors. Following examination by both parties, and submission of his resume, Mr. McKay was qualified by me as an expert in this area. 

[124]  Peace officers, including CXs, are charged with dealing with people whose behaviour may be dangerous. Laws govern the use of force by peace officers. The CCC identifies what types of force can be used, that being reasonable force, which is determined by examining the interaction between the subject’s behaviour and the response of law enforcement to the behaviour. Use of force is generally preplanned. On the other hand, self-defence is generally a spontaneous response to a threat. Everyone has the right to defend himself or herself, including peace officers conducting their duties.

[125]  All models designed for determining the appropriate level of response are circular, which reflects how people think and indicates what level of response to force is appropriate. The rule of thumb is “force + 1”: use one level of force more than the subject is using against you. The officer must justify the appropriateness of that force. Another person in similar circumstances may have a different opinion. Variables must be considered when assessing the appropriateness of the force used: gender, culture, religion and personal experience, to name a few. People see things differently based on their life experiences and training.

[126]  The fact that a threat or resistance is not evident on a video does not mean that the officer did not encounter the threat or resistance. Videos show only what the camera saw. They are two-dimensional and do not record what an officer sees. Someone viewing a video of a use-of-force incident cannot see depth and must rely on his or her interpretation to determine that depth. That is why statements and interviews are important in examining a use of force. Video generally has no audio of the events. A video cannot be contextualized without audio.

[127]  When investigating use-of-force incidents, police forces generally show the officer the video before asking him or her to make a statement. The reason is that under stress, the officer’s vision narrows and hearing changes, and the officer’s focus is on narrow things. With time, perception changes, and the officer may not recollect what happened. Asking an officer to make a statement in a stressful situation without having seen the related video may result in the officer mixing up the sequences, forgetting things, and being unable to tell the interviewer what his or her partner was doing at the time. It is not helpful as part of a use-of-force investigation to obtain a statement from an officer who has not seen the relevant video.

[128]  Current and up-to-date training is fundamental to officers’ success, particularly in use-of-force incidents. Beyond the theoretical component, the physical techniques taught must reflect what an officer will encounter. Security is a dynamic situation that requires an officer to know how to employ pressure-point tactics from all possible positions. The training must address the functionality of the job. This is key to proper response and justification. Feedback following a use-of-force incident is critical. If no criticism is made of the nature of the force used in an incident, it reinforces the use of that force regardless of whether it was appropriate or authorized. In the case of a spontaneous attack, proper training removes delay. Officers perform according to their training rather than having to delay and think about the response. Deciding what techniques are appropriate and how hard they are to be applied delays the response. Experience in applying techniques is important to the officer’s judgement in situations of spontaneous use of force.

[129]  When assessing the appropriateness of the force used by an officer in an incident, one cannot assess the subject solely on the subject’s size and gender. Adrenalin plays a major role in rendering a subject impervious to pain. A subject’s flexibility cannot be assessed simply by looking, which makes locks such as wristlocks ineffective. Flexibility also makes pain compliance techniques harder to apply and requires the officer to abandon the technique and apply an alternative. Some pressure‑point techniques are ineffective on certain people. If the officer knows that the subject has a history of violence, the officer can position himself or herself differently to avoid contact. However, the goal remains the same.

[130]  The goal of taking a subject to the ground is to limit the ability to fight. However, it does not mean that the subject cannot resist. If the officer is not trained in takedown methods, particularly when the subject is handcuffed to the rear, serious injury may occur to the subject. The key in taking down a subject is control of the head. One officer will have control of the head to prevent it from slamming onto the ground. Control of the head is gained through pressure-point techniques, such as a mastoid technique. The application of a mastoid technique varies depending on the angle of the head. The subject may seek to resist the application of the mastoid technique by turning his head away from the pain. How long a mastoid technique is applied varies. It is to be applied until the person is exhausted or has become compliant. Police officers are trained to expect failure when applying a mastoid technique.

[131]  It is difficult to deploy effective distractionary techniques in confined spaces or where limited by barriers. Officer fatigue impacts his or her mental acuity; decision making may be impaired. The use of spit masks does not prevent officers from being bitten through the mask material. Spit masks, properly applied, prevent the subject from spitting on the officer. If improperly applied, spit masks may twist.

[132]  Tim Sterkenburg attended the physical skills refresher portion of the PSRT at the institution in 2011 and 2012. Before then, until the course in 2010, he taught the PSRT. He described it as a good program when it began in 2008. It lasted two days, during which approximately one-third of the CTP was covered. When he took it in 2011 and 2012, he was disappointed with how it had degenerated. He noticed a drastic change in the quality of the curriculum and the teachers. The same material is now taught over and over each year, which means two-thirds of the CTP curriculum is left uncovered. Handcuffing was not covered; nor was any takedown practice done.

[133]  Mr. Legere testified that he had been employed as a CX for approximately 15 months when the incidents of August 11 and 12, 2012, occurred. He had been assigned to the Segregation Unit for three months at the time of the incidents. He had received no training to prepare him to work in the Segregation Unit.

[134]  August 11, 2012, started out with a regular morning. Mr. Legere was in the K‑side servery with Mr. Ferguson waiting for the next inmate movement. Two officers brought Inmate B into the servery. Mr. Ferguson stopped him because he wanted to talk to him. Mr. Ferguson told Inmate B to lose the attitude and to stop being such an “asshole.” At this point, Mr. Legere was standing between four and five feet from the pair. Inmate B said to Mr. Ferguson, “Fuck you, old man. Take these cuffs off and let’s go right now.” Mr. Ferguson then asked Mr. Legere if he should take off the handcuffs as demanded by Inmate B, to which Mr. Legere responded, “Whatever.” Mr. Legere testified that he was dumbfounded that Mr. Ferguson would ask him his opinion when other more senior officers (Mr. Bains, Mr. Pierangeli and Mr. Paul) were present.

[135]  As Mr. Ferguson was taking Inmate B’s second handcuff off, Inmate B charged at Mr. Legere. Inmate B put his head down and swung a punch at Mr. Legere, which Mr. Legere deflected. Inmate B stumbled back and then lunged at Mr. Legere again. This time, Mr. Legere swung and hit Inmate B with an open hand, sending him to the ground. He hit his face on the ground. Mr. Legere knows that he hit Inmate B with an open hand because he is unable to make a fist with that hand due to a previous injury. Mr. Legere did not kick Inmate B once he was on the ground. Once the inmate was controlled, Mr. Legere went for a walk to clear his head and then went into the J-side office to calm down from the stressful encounter.

[136]  As things unfolded, Mr. Legere thought that when the cuffs came off, Inmate B would go after Mr. Ferguson, if anyone. Mr. Legere admitted it was unwise not to stop Mr. Ferguson from taking the inmate’s cuffs off. However, Mr. Legere did not think it was right to challenge a senior CX in front of an inmate. It was an error in judgement, which he would take back if he could. A split second passed between Mr. Ferguson asking the question and taking off Inmate B’s handcuffs. Mr. Legere admitted that he did not fill out the required OSOR as Mr. Ferguson directed him not to. Mr. Ferguson told Mr. Legere, “You are not going to report this.”

[137]  Mr. Legere worked the morning shift in segregation August 12, 2012. The program for the day’s activities (Exhibit 64) included shower routine and cell cleaning. The day started with five officers on duty; one was taken away, which meant that there were two officers up and two officers down to complete the shower routine. This is normally enough, except in circumstances of an inmate on a 3-on-1 escort. 

[138]  When completing the shower routine, officers normally start at the far end of the range and work towards the bubble. Except for the fact that Inmate N was a 3‑on-1 escort, he would have been the first on his range to go to the shower. Since the officers had to wait for an additional officer to join them, Inmate N was the last on his range to be taken to the shower. When the time came to escort Inmate N to the shower, Inmate G was in the shower, which meant that the officers were required to cross Inmate N in front of the shower occupied by Inmate G. The escort was conducted in a normal fashion. Nothing out of the ordinary happened. Mr. Legere did not see any liquid come out of the shower occupied by Inmate G; nor did he smell urine or feces. He did see the liquid once he was given the opportunity to view the videotapes. Mr. Legere was second in line behind Mr. Derksen and could not see around him.

[139]  Mr. Legere saw the video of the escort sometime in December 2012 or January‑2013. He can be seen stopping to speak to an inmate on his way to Inmate N’s cell. It is normal for an officer to stop and speak to an inmate when passing a cell. It may be done for any number of reasons. Dynamic security includes answering questions, responding to requests and stopping to look in cells.

[140]  Cell cleaning in the Segregation Unit is done on weekends. The practice is to keep the food slot open so that the inmate can drop the garbage into the bin outside the cell door. On August 12, 2012, when returning Inmate N to his cell after his shower, Mr. Legere was the second officer in the line. He saw approximately six to eight inches of broom handle poking out of Inmate G’s food slot but did not see it coming out of the food slot. Mr. Legere did not know it was being thrust through the slot in order to assault Inmate N. Inmate G could have been handing it out of the cell because his cleaning was done. When the group was passing Inmate G’s cell, Mr. Legere could not see around Mr. Ferguson, who was walking in front of him. Inmate N said nothing as he passed Inmate G’s cell.

[141]  After Inmate N was put in his cell, Mr. Ferguson asked Mr. Legere if he had seen the broom handle come out of the food slot. After hearing of the attempted assault, Mr. Legere went to Inmate G at Mr. Ferguson’s prompting, took the broom away and said to him, “Stop fucking around or you will be charged.” Mr. Legere did not feel threatened when approaching Inmate G’s cell. He was not the first officer to approach the cell following the incident.

[142]  Mr. Legere did not file an OSOR concerning the events. He thought that speaking to Inmate G was sufficient. He forgot to write the warning down in the warning logbook.

[143]  Mr. Legere denied putting Inmate G up to assaulting Inmate N. Before the incidents, he had had no altercations with either inmate.

[144]  Following the incidents involving Inmates N and B, Mr. Legere went on annual leave until September 2, 2012, followed by a period of medical leave. While on medical leave, he was unable to participate in the disciplinary investigation due to medical issues (see the medical certificate, Exhibit 66). His medical leave became the subject of a workers’ compensation claim. Mr. Legere moved back to Nova Scotia to be with his family at the beginning of October 2012. At no time did he meet with the other CXs to discuss whether to file OSORs related to the events of August 11 or 12, 2012. He was not aware that any of the others had failed to file OSORs concerning the incidents of those days. He did not meet with the other officers in J office to discuss reporting the Inmate B incident. He did speak to Mr. Ferguson, who told him not to report it. Mr. Legere denied bragging about how hard he had hit Inmate B.

[145]  Mr. Derksen worked at the institution for 3½ years before his suspension pending an investigation, the last 2 years of that time in the Segregation Unit. He was working the weekend of August 11 and 12, 2012.

[146]  Cells are cleaned on weekends. An inmate is asked if he wants cleaning supplies, which are then delivered. The inmate’s food slot is left open to allow access to the garbage can outside the cell door. When the cleaning is done, the supplies are retrieved, and the food slot is closed. While a food slot is open for cleaning, no restriction is placed on moving a protective custody inmate, such as Inmate N, past the cell with the open food slot. The food slot is also left open while an inmate is using the phone, which is wheeled to the front of the cell door when required. When not in use, it is left on the range.

[147]  Mr. Derksen expressed concerns over the quality of the PSRT. He stated that more needs to be done to mimic a real situation. All the training he had received involved practising a typical situation. He had never been taught to take a non‑complaint inmate to the ground when the inmate was handcuffed.

[148]  On morning of July 20, 2102, Mr. Derksen and fellow officers were attempting to move Inmate Z to the biohazard shower, which has a glass enclosure. Inmate Z has a history of defecating in the shower and was consequently on a biohazard protocol. Inmate Z was non-compliant from the beginning. He ignored Mr. Derksen and refused to follow orders and to enter the shower. Eventually, Inmate Z appeared willing to cooperate, when he suddenly turned and rushed at Mr. Derksen with his hands in the air. Mr. Derksen had to move out of the way to avoid being struck. He applied his left hand to Inmate Z’s chest, pushed him back and grabbed his handcuffs while trying to pull him down. At the same time, Mr. Derksen applied knee strikes to the inmate to keep him down. Mr. Derksen did not want to be hit in the face with the handcuffs. Inmate Z has a history of acting out, lunging at guards and getting into incidents in which the use of force is required.

[149]  Mr. Derksen claimed that he did not have time to think about what was happening. He just reacted. Withdrawing was not an option as he believed that Inmate Z would just keep on coming at him down the length of the tier. Mr. Derksen applied a knee strike each time Inmate Z tried to get up. He stopped using knee strikes once Inmate Z stopped resisting. Only after Mr. Legere sprayed him with OC spray did Inmate Z stop resisting. At the same time as he was applying knee strikes, Mr. Derksen was trying to control Inmate Z’s hands with one hand while the other was on the inmate’s neck area.

[150]  Mr. Derksen used knee strikes in use-of-force incidents before the July 20, 2012, incident. In May 2012, he reported in an OSOR that he had used knee strikes as a distractionary technique (Exhibit 15). He was not asked to file an addendum to describe the technique used. The ruling of the use-of-force review that was completed for that incident contained no criticism of Mr. Derksen’s actions. Based on this, Mr. Derksen concluded that it was appropriate to use knee strikes on Inmate Z.

[151]  On July 21, 2012, Inmate Z was brought in from J yard. Mr. Paul put handcuffs on him. Mr. Derksen placed himself approximately six to eight feet from Inmate Z as he came through the door. Inmate Z and Mr. Paul went down. Mr. Derksen rushed in to assist Mr. Paul by taking control of the inmate on the ground. While on the ground, the inmate was resistive, so Mr. Derksen applied light knee strikes to get the inmate to turn his face the other way. Mr. Derksen shifted positions from tight against the wall to the same side as Mr. Paul. Mr. Derksen had control of the inmate’s head. The spit mask that was applied had become loose. Mr. Derksen applied a mastoid pressure technique to get the inmate to turn his head in the other direction to avoid being spit on. Every time he released the pressure, the inmate turned his head back towards Mr. Derksen. More knee strikes were applied to get the inmate to turn away from Mr. Derksen. The knee strikes were light; his knee did not come off the ground, and there was no windup. The mastoid pressure technique was intermittent and was not applied for 66 seconds, as the employer’s witnesses testified.

[152]  The diagram Ms. Contini used in the investigation of the August 11, 2012, incident involving Inmate B showed Mr. Derksen standing in the doorway between J servery and K servery (Exhibit 40). This diagram is inaccurate as according to Mr. Derksen, he was at the top of the stairs leading down into J servery. It could be assumed that the diagram is correct only if the video of K servery shot through the J bubble is relied on. The video from the J side shows Mr. Derksen coming down the stairs and entering the severy (Exhibit 50). Exhibit 50 shows Mr. Derksen entering K servery. He was canvassing for yards when Inmate B was brought in. When he entered K servery, Mr. Ferguson obstructed Mr. Derksen. He pushed Mr. Ferguson out of the way and proceeded to where the inmate was. By the time he made his way to the scuffle, Inmate B was already prone on the ground. Mr. Derksen helped apply the handcuffs to the inmate. At the disciplinary hearing, Mr. Derksen asked to have the video from J servery reviewed. The investigators refused his request.

[153]  Mr. Derksen did not report the incident; nor did he file an OSOR. He testified that he should have. While the group was in J office, he heard someone ask if they should report the incident, to which Mr. Ferguson replied, “No.” Not reporting the incident was not out of fear of being branded a rat. Others had met with investigators, and they had not been shunned. Mr. Derksen met with Messrs. Ferguson, Bains, Paul and Pierangeli in a local parking lot to discuss what they should do when the incident became known in the institution. They had heard rumours circulating in the institution and wanted to check with each other. The group determined that when asked about the event, they would tell the truth. Another meeting was held, with a bargaining agent representative, at Mr. Ferguson’s home. The decision was that they would tell the truth when they went in. By this time, Mr. Derksen had already been suspended without pay pending an investigation. Mr. Ferguson set up the meetings.

[154]  In no way did Mr. Derksen facilitate an assault on Inmate B. He did not file an OSOR because there had been no report of a use of force. Mr. Derksen did not seek medical attention for Inmate B because he thought someone else was taking care of it. He did not follow up to make sure it had been done.

[155]  On August 12, 2012, Mr. Derksen was asked to assist with a 3-on-1 escort for Inmate N. He was closest to the inmate. When conducting such an escort, Mr. Derksen gives himself more distance and lag time to enable him to see the inmate and react if required. That day, the food slots were open, the phone was on the range and the garbage can was in the way. This escort was no different from others. Inmate N was known for assaulting CXs, so Mr. Derksen knew there was a risk of a mule kick or a headbutt. When Inmate N passed the shower, Mr. Derksen did not see anything, but he did hear something being said. While Inmate N continued on, Mr. Derksen looked for a threat and continued. He noticed water droplets on Inmate N, who said nothing about them. Inmate N would have complained had something untoward occurred. He was notorious for complaining. There was no smell of urine or feces. It never occurred to Mr. Derksen that water could be an assault.

[156]  When he wrote the OSOR at Exhibit 4, tab 13, Mr. Derksen was in a room that he was unable to leave until he was done and in which he was not able to verify anything. He remembered more in September 2012, but by that time, he was already suspended. No one spoke to him about the broomstick incident on the day it happened.

[157]  Part of a CX’s fundamental duty is to act with integrity, to report information, assaults and uses of force, not to use excessive force, to refrain from abusing inmates, and to report other officers who are guilty of misconduct within an institution.

[158]  On November 22, 2013, in the company of employer representatives, bargaining agent representatives and Mr. Derksen, I took a view of the Segregation Unit at the institution. While hallways in other parts of that institution are wide enough to walk several abreast, the hallways on Segregation Unit ranges are not. The range where Inmate N was housed is very narrow and is cluttered with a very large pay phone and garbage cans. The shower that housed Inmate G on August 12, 2012, when the liquid incident occurred, has open bars that easily allow water to splash out, as was evident on the floor in front of the shower during the onsite visit.

[159]  While in the Segregation Unit, I witnessed an inmate being escorted from his cell to the correctional manager’s office. While being escorted, the CXs conducting the escort were viewed as being more than an arm’s length away from the handcuffed inmate. At the time, the inmate was handcuffed in the rear. While taking the view of the Segregation Unit, also noted were officers stopping to address inmates in their cells. In fact, one of the employer’s representatives did just that at least twice during the visit. Another thing that was noted was the number of cameras located throughout the Segregation Unit, which could provide different perspectives of an incident.

[160]  At my request, measurements were taken of various components of the Segregation Unit. The food slots in a cell door measure 15.5 inches wide by 5.5 inches high. The servery is 147.5 inches wide by 158.5 inches long, and the width of the segregation corridor where Inmate N was housed is 71 inches.

III.  Summary of the arguments

A.  For the employer

[161]  The following four issues are to be decided in these matters:

1. What is the scope of an adjudicator’s jurisdiction under paragraphs 209(1)(a) and (b) of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”)?

2. Are the suspension grievances moot? If not, are the suspensions disciplinary action with within the meaning of paragraph 209(1)(b)?

3. Were the grievors guilty of misconduct?

4. If so, was termination clearly unreasonable or wrong in the circumstances?

 

[162]  Section 208 of the Act allows employees to grieve a wide range of matters; however, section 209 limits what can be referred to adjudication (Boudreau v. Canada (Attorney General), 2011 FC 868, at para 5 and 20). Subsection 209(1) directs that only those grievances presented at the final level in the grievance process can be referred to adjudication. When a grievor fails to raise an issue until after the conclusion of the grievance process, the grievor has not presented a grievance about this new issue “. . . up to and including the final level in the grievance process . . . ,” as required by section 209 (see Burchill v. Attorney General of Canada, [1981] 1 F.C. 109 (C.A.)). Section 209 further limits the nature of the grievances that can be referred to adjudication. The adjudicator’s jurisdiction is limited to determining whether a collective agreement was breached or whether the discipline was justified (see Boudreau and Canada v. Barrett, [1984] F.C.J. No. 249 (C.A.) (QL)).

[163]  An adjudicator is without jurisdiction to consider any argument about the employer’s authority to set the effective date of a termination retroactively or to administratively suspend an employee without pay pending the completion of a disciplinary investigation, as such matters are outside the adjudicator’s jurisdiction to deal with breaches of a collective agreement or disciplinary action under paragraphs 209(1)(a) and (b) of the Act (see Burchill, Boudreau, Shneidman v. Canada (Attorney General), 2007 FCA 192, at para 25 to 30, and Pajic v. Statistical Survey Operations, 2012 PSLRB 70, at para 141 to 143). In the alternative, even if the adjudicator has jurisdiction to consider whether the employer has the authority to administratively suspend an employee without pay pending the outcome of an investigation and the authority to set a retroactive termination date, the employer has that authority pursuant to paragraphs 11.1(1)(j) and 12(1)(c) of the Financial Administration Act, R.S.C. 1985, c. F-11 (FAA) (see Brescia v. Canada (Treasury Board), 2005 FCA 236, at para 42 to 45 (leave to appeal to the Supreme Court of Canada dismissed in [2005] S.C.C.A. No. 401 (QL)), P.S.A.C. v. Canada (Canadian Grain Commission) (1986), 5 F.T.R. 51, at 12 and 15, and Peck v. Parks Canada, 2009 FC 686, at para 33).

[164]  The employer also has broad and unrestricted authority of control and management under section 6 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (CCRA):

6. (1) The Governor in Council may appoint a person to be known as the Commissioner of Corrections who, under the direction of the Minister, has the control and management of the Service and all matters connected with the Service.

. . .

 

[165]  Furthermore, the employer has the authority to set termination dates and to suspend employees without pay pending investigations pursuant to articles 6 and 17 of the the collective agreement between the Treasury Board and the Union of Canadian Correctional Officers – Syndicat des agents correctionnels du Canada – CSN, expiry date 31 May 2010 (collective agreement). At common law, this authority has been recognized in a number of decisions: Rebuts solides canadiens inc. c. Syndicat des cols bleus regroupés de Montréal, section locale 301, 2006 LNSARTQ 48, at para 103 to 107, Sanimax EEI Inc. c. Syndicat national de l’automobile, de l’aérospatiale, du transport et des autres travailleurs et travailleuses du Canada (TCA-CANADA), [2012] D.A.T.C. No. 198 (QL), at para 75 to 77, and Board of Education for the City of York v. C.U.P.E., Local 994, [1994] O.L.A.A. No. 1313 (QL).

[166]  An adjudicator is also without jurisdiction to consider any claims of procedural defects under paragraph 209(1)(a) of the Act unless expressly given that right in the relevant collective agreement. Issues related to procedural defects cannot be adjudicated (see Boudreau, at para 2, 20 and 25, and Barrette, at para 5 and 6). It is trite law that hearings before an adjudicator are de novo hearings and that any prejudice or unfairness that a procedural defect might have caused are cured by the adjudication of the grievance (see Maas and Turner v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 123, at para 118, Pajic, at para 149, and Tipple v. Canada (Treasury Board), [1985] F.C.J. No. 818 (C.A.) (QL), at 2).

[167]  It is also trite law that a grievance contesting an indefinite suspension without pay is moot when the subsequent termination of the grievor’s employment is made retroactive to the date of the suspension without pay when the adjudicator has determined that misconduct occurred that warranted termination (see Brazeau v. Deputy Head (Department of Public Works and Government Services), 2008 PSLRB 62, at para 154, Bahniuk v. Canada Revenue Agency, 2012 PSLRB 107, at para 272 to 274, and Basra v. Canada (Attorney General), 2010 FCA 24, at para 29).

[168]  The employer bore the initial burden of demonstrating that the suspensions were administrative. Against that evidence, the grievors burden was to prove that on a balance of probabilities, the employer did impose discipline through the suspension letters and that the nature of the discipline qualified it as an appropriate subject matter for a reference to adjudication under paragraph 209(1)(b) of the Act (see Sharaf v. Deputy Head (Public Health Agency of Canada), 2010 PSLRB 34, at para 75 and 76). In assessing suspensions, it is generally accepted that a suspension without pay pending an investigation is not a priori (taken as a given) deemed disciplinary action (see Braun v. Deputy Head (Royal Canadian Mounted Police), 2010 PSLRB 63, at para 135). Qualifying the suspensions as administrative or disciplinary largely depends on the employer’s intention when it suspended the grievors (see Canada (Attorney General) v. Frazee, 2007 FC 1176, at para 22, Braun, at para 135 to 137, King v. Deputy Head (Correctional Service of Canada), 2011 PSLRB 45, at para 62, and Cassin v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 37, at para 53). The issue is not whether an employer’s action was ill-conceived or badly executed but rather whether it amounted to a form of disciplinary action involving a suspension. Likewise, an employee’s feelings about being treated unfairly do not change the nature of the suspension from administrative to disciplinary (see Frazee, at para 2 and 21, and Braun, at para 140).

[169]  There is no evidence of disciplinary intent by the employer in this matter. The decision to suspend the grievors was temporary pending the completion of three disciplinary investigations. Credence must be given to the content of the suspension letters, which do not use the term “discipline” (see Exhibit 4, tabs 20, 25, 27, 31, 36, 37, 41, 44 and 46 to 48). The letters refer to the relative section of the Global Agreement between the employer and the bargaining agent (“the global agreement”) and clearly state the possibility of “. . . a serious or immediate risk to staff, inmates, the public, or the reputation of the Correctional Service of Canada.” The testimonies of Messrs. Kemball, Huish and Thompson clearly stated that the employer had no disciplinary intent and that they did not reach a conclusion about the position taken by the employer vis-à-vis the grievors until all the facts about all the incidents had been gathered, investigated and assessed. The bargaining agent did not contradict their testimonies.

[170]  The decisions relating to the alleged misconduct were completed in a reasonable time frame given the complexity of the matters, the number of witnesses to be interviewed, the unavailability of Mr. Legere, three separate investigations and the illness of Ms. Danel, who was one of the investigators.

[171]  Witness credibility must be assessed, particularly in light of the “rat code” that exists in a correctional environment (see Mackie v. Treasury Board (Solicitor General Canada - Correctional Service), 2004 PSSRB 3, at para 79). The adjudicator should assess whether the evidence is in harmony with the preponderance of the probabilities, which a practical and informed person would easily recognize as reasonable in the circumstances. The decision maker should not consider the grievors’ evidence in isolation but must examine the totality of the evidence to assess the impact of the inconsistencies in that evidence on questions of reliability pertaining to the core issue in the case. Corroborative evidence is always helpful and does strengthen the evidence of the party relying on it (see Faryna v. Chorny, [1952] 2 D.L.R. 354, at para 11, and F.H. v. McDougall, 2008 SCC 53, at para 58 and 80).

[172]  The evidence clearly demonstrated that on July 20, 2012, Mr. Derksen used excessive force on Inmate Z and subsequently sought to hide that fact by omitting key details in his OSOR. All officers working in the Segregation Unit, including Mr. Derksen, were aware that Inmate Z provoked officers to get a shower or a meeting with a correctional manager. All the officers knew that Inmate Z had mental health issues. Once he had been taken to the ground, he posed no threat; he was face down and handcuffed and on the ground. Nonetheless, Mr. Derksen used three knee strikes against Inmate Z’s torso. Mr. Derksen was never taught to use knee strikes as a distraction technique. In none of his OSORs did Mr. Derksen mention his use of knee strikes against Inmate Z (see Exhibit 4, tabs 3, 4 and 9). On July 21, 2012, Mr. Derksen repeatedly used excessive force against Inmate Z. Again, Mr. Derksen sought to hide this by omitting key details in his OSOR.

[173]  On August 11, 2012, a series of events led to Mr. Legere striking Inmate B. Mr. Derksen did not contest that he intentionally covered up this assault by failing to report the incident and subsequently meeting with officers in a parking lot and later at Mr. Ferguson’s home to ensure the information was not disclosed to the employer. He also acknowledged omitting various critical bits of information in his OSOR about the incident. There is credible and compelling evidence demonstrating that on August 12, 2012, Mr. Derksen facilitated an assault on Inmate N by Inmate G and subsequently sought to hide that assault by failing to report it. Mr. Derksen also continued to provide false information when interviewed by the investigators.

[174]  The undisputed evidence is that on August 11, 2012, Mr. Legere carelessly performed his duties, which resulted in him having to violently strike Inmate B in the face, seriously injuring him. Mr. Legere did not contest that he intentionally sought to cover up this assault; nor did he contest contributing to a serious security breach. Mr. Legere denied that he assaulted Inmate B.

[175]  Once Mr. Ferguson removed Inmate B’s handcuffs, Inmate B rushed Mr. Legere, who viciously struck Inmate B in the head with his fist. Inmate B was incapacitated by the blow, allowing Mr. Legere to simply put his hand on him thereafter. Inmate B had a bump under his eye and a severe cut on his eyebrow. The other officers in the area at the time did not immediately respond to Inmate B’s actions. In fact, they can be seen on the video casually walking in to control Inmate B approximately four seconds after the handcuffs are removed. None of the officers involved that day sought health care treatment for Inmate B. Nor did any of the officers, including Mr. Legere, report the use of force. Once he did report the incident (see Exhibit 4, tab 21), Mr. Legere omitted various critical bits of information, including that he had struck Inmate B in the head, that he acquiesced to Mr. Ferguson’s question about removing the handcuffs from Inmate B, that he placed his hands on Inmate B before the other officers arrived and that Inmate B was seriously injured. Mr. Legere also falsely described Inmate B as calm during the incident.

[176]  There is credible and compelling evidence demonstrating that on August 12, 2012, Mr. Legere facilitated two separate assaults on Inmate N by Inmate G and that he sought to hide it by failing to report the incidents. Mr. Legere continued to be dishonest throughout the investigation process when he denied any of the events occurred until presented with evidence to the contrary.

[177]  In assessing the quantum of discipline, an adjudicator should refrain from tinkering with a disciplinary measure just because he or she feels that a slightly less‑severe penalty might have been sufficient. Determining an appropriate disciplinary measure is an art, not an exact science. An adjudicator should reduce a disciplinary penalty imposed by management only if it was “clearly unreasonable or wrong” (see Cooper v. Deputy Head (Correctional Service of Canada), 2013 PSLRB 119, at para 13 and 14).

[178]  In the case at hand, the following aggravating factors reinforce that just cause existed for terminating both grievors:

1. The dishonesty they demonstrated was fundamentally inconsistent with their obligations as CXs.

2. The nature and seriousness of their misconduct struck the core of the employment relationship and resulted in significant damage to the integrity of the correctional service and the employer.

5. Inmates B, N and Z are vulnerable people in the care and custody of CXs.

6. The repetitive nature of similar serious misconduct.

7. The grievors’ failure to acknowledge any wrongdoing during the entire process.

 

[179]  The employer submitted that no mitigating factors justify substituting a lesser penalty in this case.

B.  For the grievors

[180]  To be successful, the employer had to prove that the Code of Conduct was breached and that termination was appropriate in the circumstances. The onus was on the employer to establish that it had just cause and that termination was not excessive. It is not appropriate for the adjudicator to answer the question of who is to be given the benefit of the doubt. The employer is required to produce clear, cogent and compelling evidence that the grievors committed the acts set out in their letters of termination (Exhibit 5, tabs 61 and 64).

[181]  In Mr. Legere’s case, the employer had to prove that he had a role in perpetrating an assault, that he was careless executing his duties, that he failed to follow its directives, that he failed to report as required by its directives, that he was guilty of collusion and that he provided false information to the investigators. What has been proven was that Mr. Legere failed to report the use of force against Inmate B and that he should have reported Mr. Ferguson’s direction to him not to report the incident. What was not proven was that he had any role in an assault on Inmate B or that he facilitated an assault on Inmate N.

[182]  Ms. Contini wants everyone to believe that Mr. Legere assaulted Inmate B when in fact the reverse happened. The video that the employer relied upon to support this finding is unclear. Mr. Legere had no reason or motive to assault Inmate B. Mr. Legere was candid in his description of the conversation with Mr. Ferguson before Inmate B’s handcuffs were removed. Mr. Legere did not feel he could or should challenge a senior officer in front of an inmate.

[183]  There was no evidence of a prearranged or consensual fight. The inmate was compliant going to and from the yard. He switched quickly from compliant to assaultive when his handcuffs were removed. He lunged at Mr. Legere, requiring Mr. Legere to defend himself. All the CXs testified who were present in the servery at the time, with the exception of Mr. Ferguson. They all testified that they thought Inmate B would attack Mr. Ferguson. No one suspected that Inmate B would attack Mr. Legere.

[184]  Mr. Thompson testified that Mr. Legere struck Inmate B twice. All the other evidence consistently stated that Mr. Legere deflected a blow from Inmate B. Inmate B stumbled back and then lunged again at Mr. Legere, who then struck him a second time. Mr. Legere’s actions were reasonable in the circumstances given his experience, training and involvement in previous use-of-force situations.

[185]  The employer argued that Mr. Legere and the others involved in the incident on August 11, 2012, failed to report it because of the presence of a rat code at the institution. If this were true, then why would the bargaining agent representative who attended the meeting at Mr. Ferguson’s house tell those involved to report the incident? Messrs. Pierangeli, Bains, Paul, Derksen and Legere all testified that Mr. Ferguson acted alone when he took the handcuffs off. Why would they have isolated him?

[186]  The Mackie decision, relied on by the employer, dealt with a correctional manager who had labelled his colleague a rat. The grievor received a 20-day suspension without pay for his actions. Things have changed in the correctional environment since the 1990s. All the witnesses testified that they did not fear being labelled a rat. The employer did not challenge that testimony. Everyone’s credibility must be assessed, not just the grievors’. Mr. Thompson made a decision based on a report and a poor-quality video. He never spoke to Mr. Legere or even encountered him before the disciplinary hearing. Ms. Contini’s assessment of credibility is questionable. She would not accept any version of the facts that did not agree with her own. When the CXs investigated stood by their stories, she determined that they were providing false information. There is no evidence that Mr. Legere struck Inmate B twice; nor is there any proof that Mr. Legere kicked Inmate B, yet she listed those allegations as facts in her report.

[187]  The fact that Inmate B was not offered health care was not solely Mr. Legere’s responsibility. Others were on the unit that day; others were involved in the incident. The Segregation Unit logbooks indicate that Healthcare did its rounds twice that day. Access to health care was not denied to Inmate B.

[188]  The investigators misunderstood the evidence concerning the order of the shower routine on August 12, 2012. Ms. Contini concluded that the alleged assault was prearranged because the shower order had been changed. Inmate N should have been first. What she did not consider was the change in staffing level, which presented operational consequences on the Segregation Unit. A 3-on-1 inmate transfer, such as for Inmate N, could not have been to the shower first because three officers were not available to conduct the escort until the end of the shower routine. The shower log shows the order.

[189]  Ms. Contini chose to rely on Inmate N’s version of events. He lied to her about being in a 3-on-1 escort. He is known as a liar who regularly makes false complaints against CXs. He is a known manipulator who is unwelcome in any population within the institution. He was classed as a 3-on-1 escort for the officers’ safety, not his. He has a history of assaulting CXs.

[190]  It is easy to make the video of the events of August 12, 2012, say what the employer wants it to say since there is no audio. Mr. Legere can be seen stopping to speak to an inmate on his way down the range. A CX’s job is to interact with inmates. Smiling or stopping to talk to an inmate is part of that job. The employer’s editorial addition of what was said during the encounter is not clear, cogent and convincing evidence.

[191]  The employer assumed that the distance between the officers conducting the escort is evidence of their knowledge of what was to come. An assumption is not clear, cogent and convincing evidence. The video shows that Mr. Legere was the second officer behind the inmate and that Mr. Raymond was the third. Mr. Raymond was exonerated of any culpability in the conduct of the escort. If the issue was the distance between the CXs and the inmate, Mr. Raymond should also have been disciplined.

[192]  There is no standard practice for conducting escorts. Mr. Sehra admitted that CXs are not to touch inmates being escorted. The officers who testified told of using a “V” formation unless the hallway was not wide enough, as was so in this case. Mr. Verville testified that the distance between the officers and the inmate is a matter of personal safety and discretion. Messrs. Khan and Carson testified that they keep two arm’s lengths between the inmate and themselves, which allows them to see the inmate from head to toe.

[193]  A CX conducting an escort is obligated to observe the inmate and to be aware of all surroundings. The camera does not see what the officer sees. Only because of Inmate N’s complaint did the employer know what to look for. Both incidents happened very quickly. Inmate N did not indicate anything to the officers. He would have, given that he is known as a chronic complainer.

[194]  The liquid that came from the shower was clear and transparent. According to the witnesses, it did not smell, and there was no blood. According to Exhibit 60 the guidelines for post-exposure to bodily fluids, it would not have qualified as a significant exposure to body fluids. Inmate N did not have an open wound; nor did the liquid enter his eyes, ears or nose. He was given a shower immediately following the exposure and did not file a complaint with or request to see Healthcare.

[195]  When he escorted Inmate N from the shower back to his cell, Mr. Legere saw a broom handle come out of a food slot. Cell cleaning occurs on weekends, during which food slots on cell doors are left open, regardless of the status of the inmate in the cell or of an inmate passing by. Mr. Legere testified that Mr. Ferguson asked him if he saw the broom handle. He also admitted that he should have filed an OSOR concerning the event.

[196]  Once Inmate N was put in his cell, Mr. Legere went to Inmate G’s cell. Mr. Raymond was already at Inmate G’s cell by then and had already entered it. Nothing was out of the ordinary, according to Mr. Raymond. According to him and Mr. Legere, Mr. Legere came to the cell and warned the inmate. If the employer believed Mr. Raymond’s version of events, why did it not accept that the only thing Mr. Legere did was warn the inmate? He did not indicate or gesture about the distance by which Inmate G missed poking Inmate N.

[197]  The investigation conducted by Ms. Contini was not independent. It lacked objectivity throughout the process and in the written report. She went into it with a preconceived idea of what happened and sought to prove it. She admitted she had no training in how to conduct disciplinary investigations. Some of the grounds were proven based on Mr. Legere’s admissions, which was not sufficient ground to warrant termination.

[198]  The employer’s conduct in dealing with the results of this investigation was not consistent. Others who were involved in the incidents were not terminated. Others who failed to report the incidents were not terminated. The range of disciplinary action was from one extreme to another. Messrs. Pierangeli, Bains and Paul and another officer received letters of reprimand, while Mr. Legere was terminated. 

[199]  The employer failed to consider any of the following mitigating factors:

1. Mr. Legere’s previous good record and service. He was a relatively new officer who had relocated to British Columbia from Nova Scotia, where his family was located, in order to accept the job.

2. There was no evidence of premeditation. On the balance of probabilities, Mr. Legere reacted to an assault by Inmate B. It was an isolated incident for which Mr. Legere is apologetic and remorseful.

3. The employer’s policies and orders are not uniformly applied. Mr. Legere should not be singled out. His was not the only OSOR that lacked details.

4. Mr. Legere endured a special economic hardship as a result of his suspension without pay. He accepted a position at the institution with the intention of eventually deploying to Springhill, Nova Scotia. He was forced to move back to Nova Scotia without employment, which created an extreme economic hardship.

5. Inmate B provoked Mr. Legere by lunging at him on August 11, 2012. Inmate B was not handcuffed at the time and was in a position to assault Mr. Legere. Mr. Legere should have stopped Mr. Ferguson from removing the handcuffs. He did not, and things then happened very quickly. He had no time for him to do anything but react. There is no indication that he acted in bad faith or with malice. He defended himself as he is entitled to do when assaulted. Other than the incidents of August 11 and 12, 2012, there have been no indications of Mr. Legere showing any impropriety or disrespect toward other inmates or CXs.

6. Mr. Legere has apologized and expressed remorse for his actions. He admitted his role in the events to Ms. Contini.

7. There is little likelihood of reoccurrence. He is a good candidate for rehabilitation. Mr. Legere would improve and benefit from a second chance.

8. Those who worked with Mr. Legere have direct knowledge of whether he is trustworthy, not the employer. The employer did not challenge the opinions expressed during the testimonies of Mr. Legere’s supervisor and colleagues.

 

[200]  In Mr. Derksen’s case, the employer had to prove that he witnessed an assault on Inmate B, that he failed to comply with directives, that he failed to report as required by the employer, that he is guilty of collusion and that he provided false information to the discipline board (see Exhibit 5, tab 64).

[201]  The employer did not prove that Mr. Derksen witnessed an assault on Inmate B. Mr. Derksen was nowhere near the scene of the events of August 11, 2012. By the time he arrived on the scene, Inmate B was handcuffed and on the ground. The video evidence that he produced, which proved he was not involved (Exhibit 50), was disregarded by Ms. Contini, who refused to give it any consideration. Mr. Thompson admitted that he did not look beyond what the investigators looked at (Exhibit 61, page 64). Mr. Derksen told the truth; the investigators refused to accept his evidence and concluded he was not credible.

[202]  Mr. Derksen admitted that he failed to report the Inmate B incident. He apologized at the disciplinary hearing for this lapse. His apology was real, and he would benefit from the experience. He did not try to protect Mr. Ferguson. There are grounds for disciplining Mr. Derksen but not for all the reasons set out by the employer. His misconduct has to be measured against that of the others involved who were allowed to keep their jobs.

[203]  Water coming out of the shower, as it did on August 12, 2012, was nothing out of the ordinary. The shower door has open bars. Water was on the floor. Mr. Derksen had no communication with Inmate G; Mr. Derksen had been upstairs on another range running the shower routine there. Mr. Derksen is short of stature. His view of the water coming out of the shower would have been blocked by the brim of the baseball cap he was wearing. Mr. Derksen testified he heard a comment from the shower but did not know what was said (see Exhibit 61, pages 12 and 13).

[204]  Ms. Contini and Mr. Weatherbee concluded that Mr. Derksen was not credible, based on their assertion that on August 11, 2012, he witnessed an assault on Inmate B and based on a conversation with Mr. Podesta, who investigated the July 21, 2012, incident. This lack of independence is prejudicial to the grievor. There is no evidence to support the conclusions drawn by Ms. Contini and Mr. Weatherbee. They did not demonstrate a motive as to why Mr. Derksen would have facilitated an assault on Inmate N. No evidence or reason demonstrated why he would have conspired with Inmate G to assault Inmate N. The investigators’ conclusion was based on how the 3‑on-1 escort was conducted. However, the evidence is that escorts are conducted in number of fashions and at various distances. On the July 21, 2012, video, Mr. Derksen is seen giving himself time and distance before letting Inmate Z enter from the yard. This is consistent with what he did on August 12, 2012.

[205]  According to Mr. Thompson, Mr. Derksen was not accused of setting up the liquid assault on Inmate N (see Exhibit 61, page 18, lines 3 to 8). He was accused of witnessing the event and of not reporting it. What evidence is there of this fact for the investigators to reach this conclusion. Mr. Derksen did not file a report as the event was not out of the ordinary. Inmate N did not react; there were no complaints. The liquid appeared to be water. Water escaping an open shower is a common occurrence.

[206]  The CXs are authorized to use as much force as necessary to repel as assault. They must act on reasonable grounds. To determine if an officer’s reaction was reasonable, one must ask what a reasonable officer on the scene would have concluded. Allowance must be made for split-second decisions (see R. v. Bottrell, 1981 CanLII 352, and Anderson v. Smith and the City of Port Moody, 2000 BCSC 1194, at para 51). The expert witness testified that the use of force by CXs is no different than that of police officers. They both receive their authority to use force from the CCC.

[207]  In the video of the July 20, 2012, use-of-force incident, it is clear that Inmate Z is the aggressor. He is very flexible, and even though he was handcuffed, he was not controlled. The assault lasted eight seconds. Mr. Derksen used knee strikes, but his leg was not loaded, which, according to the expert witness, indicates that the knee strikes were not powerful. Inmate Z stopped struggling only after Mr. Legere used OC spray. In his OSOR attached to the use-of-force investigation report (Exhibit 26), Mr. Derksen states that he applied distractionary techniques. He omitted the details of what techniques were used. One cannot conclude that he hid details of his use of force merely because the employer wanted more information. Others who reported the same incident also lacked details but were not asked to file addendums to their OSORs. Mr. Derksen’s OSOR was reviewed and signed off by his correctional manager. If the correctional manager had concerns, Mr. Derksen could have made changes or clarified where required, and yet, he was not asked to. In fact, the correctional manager signed off with his evaluation that the use of force was reasonable, that there was no violation of the law or CSC policy, and that the force option used was appropriate (see Exhibit 26). Mr. Derksen admitted in his testimony that, in hindsight, he could have chosen other techniques.

[208]  In his OSOR attached to Exhibit 15 (use-of-force report of May 2012), Mr. Derksen refers to distractionary techniques, which are not detailed. Again, his correctional manager reviewed and signed it as being appropriate. The techniques applied in that incident were knee strikes, according to Mr. Derksen. He was never told that knee strikes were inappropriate or that the distractionary technique applied should be specified in detail. According to the expert witness on the use of force, unless an officer is provided feedback to the contrary, the officer will resort to that use of force again. In other words, lack of feedback reinforces the behaviour. Likewise, Exhibit 15 shows a lack of detail as to which distractionary techniques were used, and again, the officers were not asked to provide more detail.

[209]  The employer’s counsel stated that knee strikes were not taught in the CTP. Mr. Sehra testified otherwise on May 16, 2013, when he stated that CXs are trained to use knees in the fashion used by Mr. Derksen. The use of knee strikes depends on the situation. They may be appropriate as a distractionary technique. Ms. Danel and Mr. Lizotte both testified about knee strikes as an option when dealing with self‑defence situations. Mr. Derksen had no time to plan what type of force to use. It was a spontaneous response to the situation. Both Mr. Sehra and the expert witness testified that in the same situation, people react differently. The fact that Mr. Derksen could have responded in another fashion does not mean that responding as he did was excessive.

[210]  Likewise, Mr. Derksen’s use of force on July 21, 2012, might not have been the best use-of-force response. Mr. Derksen admitted as much twice, once at the disciplinary hearing and again at adjudication. He explained he was in a bad position against the wall with his partners on the other side of the inmate. Based on his belief that the inmate was facing him and not the wall, he feared for his own safety. He had no prior experience with spit masks. Mr. McKay testified that an inmate can still spit though the mask if it is not properly adjusted. He also testified that spit masks do not prevent an inmate from biting.

[211]  Mr. Derksen did use more knee strikes than he used on July 20, 2012, but again, his leg was not loaded. The strikes were more like taps. Initially, this use of force was deemed appropriate, according to Mr. Sehra (see Exhibit 38). The use of force investigation was reopened because of the investigation into the incident of the day before. On July 21, 2012, Inmate Z was resisting and non-compliant with verbal commands. Mr. Derksen was attempting to control the inmate’s torso and head.

[212]  The employer did not prove the grounds it relied on to terminate Mr. Derksen. It showed only his failure to report the incident of August 11, 2012, and the number of knee strikes used and where they were applied on July 21, 2012. The employer did not consider his employment record, that he is appreciated by his coworkers and correctional managers, and that he is not solely responsible for his actions. A failure to warn him about using knee strikes must be considered a mitigating factor (see Brown & Beatty, Canadian Labour Arbitration, 4th edition, at 7:4416). An employee must be provided the opportunity to demonstrate desired behaviour.

[213]  The appropriate quantum of discipline in the case of Mr. Derksen is a suspension, even if the adjudicator determines that excessive use of force was used in the July 21, 2012, incident. In the case of Rose v. Treasury Board (Correctional Service of Canada), 2006 PSLRB 17, a CX who pled guilty to assaulting an inmate was reinstated to his position. In place of the termination, the adjudicator determined that a lengthy suspension was appropriate.

[214]  As for the indefinite suspensions without pay pending investigation for both grievors, the employer breached Appendix G of the collective agreement. According to Appendix G, they should have been suspended with pay. Appendix G takes precedence over the general management rights clause of the collective agreement. Mr. Legere was unavailable to participate due to illness. The employer was provided with a medical certificate, which it did not dispute. Initially, the grievors were to be suspended with pay pursuant to clause 17.01 (see Exhibit 4, tab 15, page 2). The employer then changed its mind and applied the global agreement to suspend the grievors without pay (see Exhibit 4, tab 15, page 3). The global agreement does not form part of the collective agreement and cannot trump it (see Exhibit 77, page 33).

[215]  The grievances concerning the suspensions without pay are not moot. There is no Board consensus, so the Federal Court must be consulted for direction (see Basra, 2010 FCA 24). There is a presumption at law that any authority to impose a retroactive penalty must be authorized expressly or by implication of a statute (see Shell Canada Ltd. v. Canada (Attorney General), [1998] 3 F.C. 223 (T.D.), at para 35 to 37, and Thow v. British Columbia (Securities Commission), 2009 BCCA 46, at para 10 to 13). Neither the FAA nor the CCRA authorize the retroactive termination of an employee. Furthermore, there is no authority to do so under the collective agreement.

[216]  Allowing a deputy head to retroactively terminate an employee would grant the deputy head powers that he or she does not have. This would require a change either to the legislation or to the collective agreement, both of which are beyond the Public Service Labour Relations Board’s jurisdiction. Doing so would also eliminate the grievor’s right to grieve the suspension, which would be a violation of paragraph 209(1)(b) and subsection 228(1) of the Act and of clause 20.02 of the collective agreement.

[217]  The employer must prove cause both for the suspension and the termination (see York (City) v. C.U.P.E., Local 10, [1999] O.L.A.A. No. 8 (QL)). The grievors have the right to grieve both and to have them dealt with by the adjudicator pursuant to the Act and the collective agreement (see Roberts v. Deputy Head (Department of Human Resources and Skills Development), 2009 PSLRB 108, and Baptiste v. Deputy Head (Correctional Service of Canada), 2011 PSLRB 127).

[218]  The suspensions of Messrs. Legere and Derksen were disciplinary. The onus was on the employer to establish grounds for the suspensions. Others who were involved in the same events were not suspended and were allowed to work their regular schedules in the Segregation Unit. Other positions were available within the institution to which the grievors could have been deployed rather than suspending them without pay. None was considered as a viable option. The employer made no effort to determine alternatives to the suspension without pay option. The suspensions were reviewed, but nothing changed. The letters confirming the suspensions remained unchanged. The CSC’s reputation was not attacked; there was no media coverage of the events. An employee’s right to make a living must trump the employer’s right to suspend him or her without pay (see Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70, and Cabiakman v. Industrial Alliance Life Insurance Co., 2004 SCC 55).

[219]  The employer claimed that it had no intent to discipline the grievors when they were suspended without pay. However, it responded to allegations of culpable behaviour, which made the suspensions disciplinary. Given the complex nature of the complaints, it took a great deal of time to complete the investigations. These matters were complex because the employer made them complex. All the witnesses and all the information required to complete the investigations were within the employer’s control. The employer had no complaints from coworkers refusing to work with the grievors to justify excluding them from the workplace. The employer is required to truly assess the reasons for a suspension regularly, and after 30 days, a suspension becomes disciplinary, even without intent by the employer to discipline (see Larson v. Treasury Board (Solicitor General Canada - Correctional Service), 2002 PSSRB 9, and Basra (PSLRB)).

C.  Employer’s rebuttal

[220]  Appendix G of the collective agreement does not apply because these were suspensions without pay pending an investigation and were not the removal of the grievors from duties or their normal work site. Appendix G is significantly different from administratively suspending someone, as anticipated in the global agreement. There is no express restriction on the employer’s ability to suspend employees, as long as it is reasonable. To be reasonable, the risk of their continued presence in the workplace must be assessed.

IV.  Reasons

[221]  For ease of understanding, I will deal with the grievors’ terminations separately. Issues related to the suspensions without pay and to the employer’s ability to terminate either or both of the grievors retroactively will be dealt with in a more global context, as will be the mootness argument. The parties have provided me with three volumes of case law to support their arguments. While I have read each case, I will refer only to those of primary significance.

[222]  Fact finding by an adjudicator, such as taking a view of the premises, must be conducted in accordance with proper procedure. According to Brown & Beatty, if a view is taken, those in the viewing party should be limited to the members of the board, counsel, and a representative of each party who is knowledgeable as to the equipment or premises to be examined. Counsel may properly point out material features of what is observed but only in the presence of the opposing party (see Brown & Beatty, at para 3:3300). The view of the institution’s Segregation Unit on November 22, 2013, was taken in just such a manner. At the outset, in response to a query from counsel for the employer, I clarified that the information gathered as part of the view would be considered evidence for the purposes of this hearing. Neither party raised any concerns with or objections to this or to the conduct of the view.

[223]  The employer convened three different boards of investigation to look into the events of July 20 (Ms. Danel), July 21 (Podesta), and August 11 and August 12, 2012 (Ms. Contini). The convening orders provided to members of those boards by the warden of the institution directed each of the panels to do the following (Exhibit 4, tabs 16, 17, 28 and 38):

. . .

. . . provide [him] with the complete circumstances surrounding the above-mentioned incident including

a) A background of the incidents;

b) Description of the allegation(s) and;

c) The chronology of the events.

. . .

I FURTHER DIRECT that the Board specifically analyze the following issues including any issues of compliance to law, policy and procedure:

a) Review the circumstances surrounding the allegations of inappropriate conduct and provide any relevant findings;

b) Whether any documentation or records requested by the Board were not received; and

c) Any other matter which is deemed relevant.

. . .

In applying the Duty to Act Fairly process, the Board shall apply the same considerations and follow the same procedures whether the person is a member of the public, a staff member, a Parole Board member, an offender, and inmate or a contractor.

[224]  While there was no direct evidence of what constituted the “Duty to Act Fairly process,” the employer is obligated to ensure that investigations into misconduct are conducted expeditiously, without bias or the reasonable apprehension of bias, and in compliance with the laws of natural justice.

[225]  The issue of bias or reasonable apprehension of bias was addressed as follows in Robertson v. Deputy Minister of National Defence, 2010 PSST 0011:

. . .

50 . . . Bad faith traditionally implies that there is an improper intent, a bias, or a lack of impartiality in exercising discretionary authority. Therefore, the allegation that the respondent was biased is one of bad faith in its assessment of him. See: Beyak v. Deputy Minister of Natural Resources Canada, 2009 PSST 0007. See also: René Dussault and Louis Borgeat, Administrative Law: A Treatise, 2nd ed. (Toronto: Carswell, 1990) vol. 1, at 425 and vol. 4, at 343.

51 The courts have acknowledged that direct evidence of actual bias is difficult to establish and have found that fairness requires that there be no reasonable apprehension of bias. A test for reasonable apprehension of bias has been established and is to be applied when reviewing a decision from a public authority that affects the rights and privileges of a person. This test is flexible as it takes into consideration that the duty to act fairly varies depending on the context of the decision. See: Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817, at paras. 45 to 47; and, David Philip Jones & Anne S. de Villars, Principles of Administrative Law, (Toronto: Thomson Carswell, 2009), at 396 and following.

52 In Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, at p. 394, the reasonable apprehension of bias test is set out as follows:

[T]he apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information....[T]hat test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly.

. . .

 

[226]  The primary allegations against Mr. Legere and Mr. Derksen (among other allegations in his case) are that each was involved in and did not report a use-of-force incident against Inmate B on August 11, 2012, and that each participated in facilitating two assaults on Inmate N by another inmate on August 12, 2012. Ms. Contini and Mr. Weatherbee investigated both incidents. According to the grievors, their investigation process and report were fraught with procedural faults and statements that lack objectivity such that bias is clearly demonstrated on the part of the investigators, and to consider it as evidence of wrongdoing would be highly prejudicial to both grievors. The investigation report and any disciplinary action resulting from it should be considered void ab initio (invalid from the start).

[227]  I took guidance from the direction in Mackie and assessed all the evidence put before me. The evidence of the witnesses interviewed by the Contini board of investigation was consistent in that the investigators would not accept any evidence that did not conform to their own view of the events. Furthermore, it is clear that alternate theories of the events and alternate proof were disregarded, such as the video Mr. Derksen attempted to introduce. Mr. Thompson testified he was unaware of this alternate video until the disciplinary hearing. Yet, Ms. Contini concludes as follows at page 41:

3) CX l DERKSEN’s assertion that he was not presend [sic] and did not arrive in the Servery until B was already proned [sic] on the floor is not supported by the videotaped evidence and is rejected by the Board.

 

[228]  My review of the Contini decision raises concerns about the investigators’ objectivity. Given the complexity of this investigation, it was reasonable for the grievors to have expected a seasoned investigator to be appointed, especially given Ms. Contini’s lack of training and experience conducting investigations. The chronology of the events forms the starting point for and the basis upon which the events were investigated. Comments such as, “. . . it is believed that B is kicked on the ground” and, “Camera footage reveals a motion similar to kicking. Officers are believed to be spectating,” in the chronology of events (Exhibit 4, tab 42, page 7) do not constitute proof or veracity of what happened. The evidence before me was clear that at no time was Inmate B kicked, and yet, at page 42, the investigators conclude as follows that the kick did happen:

Video footage next reveals an Officer direct [sic] a punch at B. The view of the actual strike is not shown on vide [sic]; however, an Officer wearing a short-sleeved uniform shirt and gloves is seen making a hard punching motion in the direction of B. The Board of Investigation, though not having definitive evidence, believes this punch is followed by a kick to B, by the same officer.

[229]  Similarly, at page 9 of the report, I question the relevance of “CX l LEGERE is seen laughing after leaving G in the shower and talking with CX l DERKSEN,” and, “It appears that CX I LEGERE is indicating he missed N by about two feet. . .” at page 10 indicates an interpretation of the video designed to support the employer’s theory of the events. The videos that were reviewed do not have audio, and yet the investigators state that “CX ll FERGUSON is seen leaving N’s cell mouthing words to the effect of ‘Fucking piece of shit, piece of shit.’” Without the benefit of an audio recording or testimony from an expert in lip reading, I do not accept this version as accurate.

[230]  In arriving at her conclusion related the Mr. Legere’s role in the assault on Inmate B, Ms. Contini assessed the credibility of those who were interviewed as part of the investigation process as follows:

. . .

. . . There was an obvious reluctance on the part of all witnesses to tell the whole truth and a tendency to understate facts that they considered to be inculpatory. CX l LEGERE had the greatest motive to understate this fact. The strike to B, and the context within which it occurred, is what the Board found determinative not the nature of the strike. Having said that, the Board is of the opinion that the most probable likelihood is that the strike was a closed fisted punch. This is supported by the videotaped evidence and corroborated by CX l BAINS. . . .

 

[231]  The videotape in question was shot from the end of a range through the glass there. It is at best fuzzy. In my opinion, after having seen it, a great deal of manipulation and interpretation is required to draw any conclusions about what transpired. Mr. Bains testified that he changed his description of how Inmate B was struck to suit Ms. Contini’s version during her interrogation of him. While it is possible that the events transpired as concluded by Ms. Contini, it is also possible that through the eyes of another viewer, another conclusion would be drawn.

[232]  Ms. Contini’s analysis of the events of August 12, 2012, and the conclusions drawn from it are not supported by the evidence obtained through the investigation or presented at the hearing. At page 98 of her report, she states that the officers seemed to be lagging far behind Inmate N, providing them a safe distance between him and what was to be thrown from the shower. According to Ms. Contini, Mr. Sehra stated that the officers should have been one pace behind the inmate. While initially deemed suspect, the board of investigation determined that this is normal practice at the institution. Yet, the employer concluded that it was done to facilitate Inmate G’s alleged assault with an unknown liquid on Inmate N.

[233]  Likewise, Ms. Contini relies on the fact that in the video, Mr. Legere can be seen speaking to Inmate G twice before the first incident and laughs as he leaves Inmate G’s cell. She alleged that that interaction could have provided Mr. Legere with the opportunity to advise Inmate G of the impending escort of Inmate N. Yet, there is no audio of the conversation.

[234]  To conclude that wrongdoing occurred on the part of the grievors, more than possibilities are required. It is also possible that stopping to address inmates was part of Mr. Legere’s role as a CX, as testified to at the hearing. The grievors asked that they be given the benefit of the doubt. It is not a question of giving either party the benefit of the doubt. It is a question of the employer discharging its burden of proof, which it failed to do in relation to the events of August 11 and 12, 2012. The employer has not in my opinion proven to me, on the balance of probabilities, that their interpretation of the events as recorded on the videos is correct.

[235]  Having identified a few of the concerns that are apparent in the Contini report, I believe that there is sufficient reason for agreeing with the grievors’ statement that it is biased. At the very least, given her conduct in the investigation, for example, refusing to accept exculpatory evidence and refusing to accept a version of the facts inconsistent with her own, and the manner in which she conducted her interviews, as described by those CXs interviewed and supported by the recordings of these interviews submitted at the hearing, there was a reasonable apprehension of bias.

[236]  In contrast to Ms. Contini’s report, the reports by Mr. Podesta and Ms. Danel are thorough and analytical. Furthermore, they are supported by videos that clearly indicate the events that were investigated. They did not rely on videos shot through glass and from a distance or on evidence that could have been gathered only from non‑existent audio.

[237]  In such cases, an adjudication hearing provides the grievors with a hearing de novo sufficient to remedy any procedural errors encountered in the investigation process (Tipple). At this hearing de novo, the employer is still required to discharge its burden of proof and establish the facts upon which the disciplinary action was founded. This is even more crucial when the investigation and report are flawed and biased, as is the Contini report.

[238]  From my viewing of the video of the August 11, 2012, incident involving Inmate B, it is apparent that something happened that involved him and some CXs in the servery at the time. The video lacks definition sufficient to determine what exactly occurred. The evidence of all the CXs involved is consistent and unwavering. All stated that the inmate was compliant until Mr. Ferguson addressed him. No one expected that once Mr. Ferguson removed the handcuffs, Inmate B would lunge at Mr. Legere, who reacted reasonably in the circumstances, according to the witnesses. The employer would have me believe that Mr. Legere used excessive force when repelling the attack. The video evidence is not sufficiently clear to support this conclusion, in my opinion, in the face of the testimonies of those involved. I accept that Mr. Derksen was not involved with the inmate until after he was on the floor in handcuffs, based on the alternate video submitted as Exhibit 50.

[239]  Pursuant to “Commissioner’s Directive 568-1,” Recording and Reporting of Security Incidents (Exhibit 5, tab 76) all staff are required to “. . . document an incident or behaviour that has been witnessed or observed in a Statement/Observation Report (SOR) (CSC/SCC 0875) [emphasis added].” By their own admission, Messrs. Legere and Derksen did not report the August 11, 2012, incident involving Inmate B. Nor did the others involved in the incident. Mr. Legere testified that Mr. Ferguson told him not to report it. Mr. Legere felt that he should follow this direction as Mr. Ferguson was a senior officer. In retrospect, Mr. Legere admitted that this was the wrong thing to do and expressed what I judged sincere remorse for doing so. Likewise, Mr. Legere admitted that a use of force resulting in an injury requires Healthcare be notified, which in the case of Inmate B was not done.

[240]  Mr. Derksen’s culpability for not reporting the incident exceeds that of Mr. Legere in that Mr. Derksen was one of a group of CXs who planned on several occasions not to report the incident. He was included in the meetings in the Superstore parking lot and again at Mr. Ferguson’s home. While both breached Commissioner’s Directive 568-1, Mr. Derksen breached it multiple times by agreeing with his colleagues not to report the incident. Mr. Derksen also expressed remorse for his role in attempting to hide the incident from the employer.

[241]  Mr. Ferguson’s role in perpetrating the August 11, 2012, incident and in concealing it from the employer seems to me to be key to understanding the true nature of what was said and what happened as a result. While a summons was issued for Mr. Ferguson, he was never called upon to testify. Mr. Legere testified that Mr. Ferguson asked him if he should remove Inmate B’s handcuffs. This was an unusual question for a senior officer to pose to a junior officer. Not wanting to contradict a senior officer in front of an inmate, Mr. Legere testified that he replied with something to the effect of, “Whatever.” He did not attempt to prevent Mr. Ferguson from removing the handcuffs. A reasonable person in the situation would have concluded that a fight would result if in fact the inmate’s handcuffs were removed. The other CXs who testified indicated they presumed that if the handcuffs were removed as suggested by Mr. Ferguson that he and not Mr. Legere would be attacked and yet they did nothing to prevent Mr. Ferguson from removing the handcuffs from the inmate. Regardless of whom the inmate ultimately attacked, Mr. Legere should have disagreed with Mr. Ferguson’s plan to remove the handcuffs and should have indicated as much to Mr. Ferguson. In addition, Mr. Legere should have reported this interaction via an OSOR, pursuant to Commissioner’s Directive 568‑1. During his testimony, Mr. Legere recognized failing to stop Mr. Ferguson as a failure on his part.

[242]  I do not accept the employer’s version of the incidents of August 12, 2012, involving Inmates N and G. Without audio, I have no proof of what Mr. Legere said to Inmate G. Unlike Ms. Contini, I find the witnesses were forthright and credible. Mr. Legere testified that he stopped to speak to Inmate G as part of his normal routine of what he does when spoken to by an inmate. I witnessed just this type of activity happening on the Segregation Unit when a member of our group stopped to address an inmate who had a question for him and was provided with ample testamentary evidence to this effect. Furthermore, Mr. Legere provided me with just as plausible an explanation of what he said before and after the shower and broom incidents as the employer’s explanation.

[243]  As to the conduct of the escort of Inmate N, the video does not provide an accurate perception of the distance between Mr. Derksen and Inmate N as he passes Inmate G in the shower. I have no doubt that Mr. Derksen was aware of liquid escaping the shower, having been first in line. I also think it reasonable that he concluded that the liquid was water, given that the shower was running at the time and that the liquid did not smell of urine or feces and was clear.

[244]  The employer would have me believe that Inmate G and Mr. Legere preplanned this incident. It submitted as evidence how Inmate N was escorted past the shower and in particular the distance between the inmate and the CXs. This assertion was not supported by the testimonies of the witnesses, including Mr. Sehra, who stated that CXs at the institution do not put their hands on inmates being escorted and that the distance between an officer and an escorted inmate is based on personal preference and varies from one to two arm’s lengths. The witnesses also testified that the formation used when escorting an inmate will vary depending on the location, obstacles and hallway dimensions. During the view of the Segregation Unit, I witnessed CXs escorting an inmate in exactly the manner used on the videos. The hallway in question was measured when the view was taken. Given the size of the officers, it is unlikely that they could walk two abreast in a hallway measuring 71 inches wide, which would explain why the officers escorting Inmate N were in a linear formation rather than a triangle. 

[245]  On returning Inmate N to his cell, Mr. Legere admitted that he saw the broom handle sticking out of the food slot in Inmate G’s cell door. He also admitted to telling Inmate G to stop “fucking around.” He considered that the end of the matter. He did not think it worthy of reporting as, in his opinion, he had dealt with it at the lowest level, pursuant to the employer’s policies. Regardless, it is clear that he should have recorded the warning he gave to Inmate G in the unit logs. Likewise, neither he nor Mr. Derksen thought the shower incident significant enough to warrant reporting. For this failure, the employer asked that I find the grievors culpable of neglecting their obligation to report incidents and that I support its decision to terminate them.

[246]  Less uncertainty surrounds the incidents of July 20 and 21, 2012, involving the use of force by Mr. Derksen against Inmate Z. As I have previously indicated, the investigation reports are thorough and measured in their assessments of the events. From my viewing of the videotapes of the incidents, I could clearly see the inmate on the ground struggling with the officers. On the recordings of the July 20 and 21, 2012 incidents, I could see Mr. Derksen straighten his leg and then bring his knee sharply into the inmate’s body, striking him in the shoulder area. On July 21, it is also evident that Mr. Derksen ground the inmate’s face into the floor while applying pressure to the side of his head, ostensibly applying a mastoid technique for an extended time. Mr. Derksen did not recognize that his behaviour might have contributed to the inmate’s agitation, which thus exacerbated the situation. The fact that Mr. Derksen used knee strikes on one occasion before July 2012 for which he did not receive feedback or discipline does not constitute condoning this type of use of force by the grievor in such circumstances. Force is used to take control of a situation or to prevent injury or damage. Mr. Derksen’s application of force, as evidenced on the videos, posed a threat to his safety and that of others by further agitating the inmate, causing him to struggle against the officers’ attempts to control him.

[247]  Based on all the above, discipline is warranted against both grievors for their failures to report, as required by Commissioner’s Directive 568-1. Unlike Mr. Derksen, no evidence supports the allegation that Mr. Legere colluded with other officers in an ongoing attempt to hide the incident from the employer. Discipline is also warranted for Mr. Derksen’s inappropriate use of force on July 20 and 21, 2012. The question is whether termination was warranted, and if it was, the appropriate date to give effect to that termination. Given that others involved in the same situations who failed to report the incidents of August 11 and 12, 2012, received only minor discipline, and given the mitigating factors outlined by the bargaining agent, termination is excessive for this infraction alone. However, Mr. Derksen has been found culpable of other violations of policy other than a failure to report. The extent of the use of force he employed against Inmate Z was excessive, according to the employer’s witnesses, whose testimony I accept in this regard.

[248]  An adjudicator should reduce a disciplinary penalty imposed by management only if it is “clearly unreasonable or wrong” (see Cooper, at para 13 and 14). In Mr. Legere’s case, termination was clearly unreasonable, given the nature of his offences and the type of discipline dealt to others involved. Given that he is culpable of at least three failures to report, as required by the employer’s policies, a simple letter of reprimand is insufficient to send the message that such behaviour will not be tolerated. In these circumstances, a suspension should be imposed rather than a termination. A 20-shift suspension, retroactive to the date of his indefinite suspension, should be substituted for the termination, and Mr. Legere should be reinstated to his position as a CX-01.

[249]   If Mr. Derksen’s culpability were limited to the same situations as Mr. Legere’s, the same discipline reduction would be the case. However, Mr. Derksen has added culpability for what the employer has determined was an excessive use of force, with which I agree, and for his participation in meetings outside the workplace with coworkers intended to disguise the true nature of their failure to report which I find constitutes collusion with his coworkers to hide the Inmate B incident from his employer. The knee strikes he used were not taps, as described by the grievor’s representative. It is evident from the videotape that Mr. Derksen brought his leg back, fully extended it and lifted it off the floor in order to bring it forcefully into the inmate’s side.

[250]  In my assessment, Mr. Derksen has not demonstrated a true understanding of the potential consequences of his actions and would no doubt resort to these tactics if faced with similar circumstances in the future, which would put the institution, the inmates and his fellow coworkers at risk. Mr. Derksen has violated not only Commissioner’s Directive 568-1 but also the Code of Professional Conduct by failing to report an incident, by trying to disguise information related to a use of force in which he was involved and by mistreating an inmate in his custody. Despite training in the proper methods of use of force, with annual refreshers, albeit refreshers which were not as thorough or as intensive as the initial training provided to correctional officers, Mr. Derksen chose to utilize methods to control the inmate which were not part of his training and which were in fact excessive. The employer is justified in its concern about Mr. Derksen repeating this behaviour should he continue to be employed with the CSC. Consequently, I do not believe that the employer was unreasonable or wrong in determining that termination was appropriate in the circumstances.

[251]  The bargaining agent has argued that a decision to terminate an employee retroactively is ultra vires (beyond the powers of) the deputy head’s authority to determine dates of employment. I dealt with this same argument as follows in the case of Basra v. Deputy Head (Correctional Service of Canada), 2014 PSLRB 28:

. . .

[152]  Having concluded that termination was appropriate in this case, the question raised by the grievor as to the deputy head’s authority to impose a retroactive termination date must be addressed. The grievor argued that the determination of a termination date that precedes the date of the disciplinary hearing is a retroactive application of the FAA. Paragraph 12(1)(c) of the FAA authorizes the deputy head to set and impose penalties with respect to discipline, including discharge. Sections 7 and 11.1 of the FAA grant the Treasury Board a broad unlimited power to set general administrative policy for the federal public service, to organize the public service, and to determine and control the personnel management of the federal public service. Pursuant to paragraph 11.1(1)(j) of the FAA, this includes the power to determine the terms and conditions of employment not otherwise specified in that section to ensure effective human resources management in the federal public service. This authority is among those human resources management functions delegated to deputy heads in respect of their departments or agencies. This catch-all authority is unfettered, unless otherwise limited by statute or a collective agreement (see Public Service Alliance of Canada v. Canada (Canadian Grain Commission) (1986), 5 F.T.R. 51 (T.D.), Peck v. Parks Canada, 2009 FC 686, and Li v. Canada (Citizenship and Immigration), 2011 FCA 110).

[153]  Part of the decision to impose termination as a disciplinary action must include a determination of the date on which the employment relationship ceases to exist. The grievor argued that the appropriate effective date for the termination, if I conclude that termination was warranted, was the date of the disciplinary hearing, April 14, 2009, some 10 months after the suspension took effect. I disagree with this opinion. So long as the facts upon which the termination is based existed as of the date chosen to give effect to the termination, the deputy head has the authority to set an effective date (see Board of Education for the City of York v. C.U.P.E., Local 994, [1994] O.L.A.A. No. 1313 (QL)).

. . .

 

[252]  Finally, the grievors’ representative has argued that the length of time required to complete the investigation process became disciplinary because of the delays. The grievor argued that the employer exceeded the one-month limit described in Basra, 2007 PSLRB 70.

[253]  I have also had the opportunity to consider this decision recently and stated as follows in Basra, 2014 PSLRB 28:

. . .

[161]  The time it took to complete this disciplinary investigation is another red herring. . . With all due respect to my colleague, when he states at paragraph 137 of the decision:

[137] When the CSC makes a decision to suspend an employee pending a disciplinary investigation where criminal charges are laid for off-duty conduct, it is incumbent on the CSC to “get on and conclude” an investigation in a timely manner. . . . ,

That is not always possible within the one-month limit he described at paragraph 136 of his decision. . . meeting a one-month limit is not always possible. While I agree the employer should not unreasonably prolong a suspension without pay on the basis of an ongoing disciplinary investigation, in my opinion, if the employer can be shown to be diligent in pursuing the disciplinary investigation, some leeway must be given to the length of time it takes to conclude the investigation. The length of time it takes to conclude a diligent investigation is not always within the employer’s control. That is not to say that the employer can suspend an employee without pay, pending investigation, and allow that employee to languish indefinitely. No doubt had the conviction and sentence not been appealed, the employer would have acted to complete the disciplinary process post-haste.

. . .

 

[254]  Given the number of witnesses involved and the difficulty meeting with Mr. Legere, the length of time to conduct the investigation was not unreasonable, and it was administrative in nature. Had a more seasoned investigator been secured to conduct the investigations into the August 11 and 12, 2012, incidents, perhaps the timelines would have been abbreviated. However, this would not have addressed the delays caused by Mr. Legere’s illness and subsequent relocation or Ms. Danel’s illness, which delayed her report. In Mr. Derksen’s case, having concluded that the employer’s decision to terminate his employment was reasonable, and having determined that the employer has the authority to retroactively set the termination date, his grievance concerning the suspension without pay is moot.

[255]  For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

V.  Order

[256]  The grievances in PSLRB File Nos. 566-02-7818, 7819, 7820, 7821 and 8445 are dismissed.

[257]  The grievance in PSLRB File No. 566-02-8441 is allowed in part.

[258]  The grievor Legere shall be reinstated to a CX-01 position at the institution (or such other institution to which the parties mutually agree) within 90 days of this decision retroactively to September 3, 2012, without loss of seniority or other benefit.

[259]  The grievor Legere shall be paid shift and weekend premiums and lost overtime based on the average of such payments made to CXs employed in the Segregation Unit at the institution between September 3, 2012, and the date of this decision.

[260]  The grievor Legere shall also receive any salary increases he would have been entitled to but for the fact he was suspended without pay from September 3, 2012, until February 20, 2013, as well as any such increases that he would otherwise have been entitled to had he been in the workplace after February 20, 2013.

[261]  From any amounts due to the grievor Legere shall be deducted an amount equal to the salary normally earned over a 20-shift period by that grievor based on his schedule immediately before September 3, 2012.

[262]  I will retain jurisdiction to deal with matters arising out of this order for a period of 120 days from the date of this decision.

June 18, 2014.

Margaret T.A. Shannon,

adjudicator