2010-OHSTC-006

OHSTC-10-006

Citation : Armstrong v. Canada (Correctional Service), 2010 OHSTC 6 Date: 2010-03-29

Case No.: 2004-34

Rendered at: Ottawa

Between:

B. Armstrong et al., Appellants

- and -

Correctional Service of Canada, Respondent

Matter: Appeal against a decision rendered by a health and safety officer under paragraph 129(7) of the Canada Labour Code

Decision: The decision is rescinded and a direction is issued

Decision rendered by: Mr. Douglas Malanka, Appeals Officer

Decision language: English

For the appellant: Ms. Corinne Blanchette, Union Advisor, UCCO‑SACC‑CSN (Union of Canadian Correctional Officers – Syndicat des agents correctionnels du Canada – Confédération des syndicats nationaux)

For the Respondent: Mr. Richard Fader, Counsel, Department of Justice Canada

Reasons

[1] This is an appeal brought by sixteen employees of Correctional Service of Canada (CSC) pursuant to subsection 129(7) of the Canada Labour Code Part II (Code) against a decision made by Health and Safety Officer (HSO) Michael O’Byrne that the danger alleged by the employees did not exist.

Background

[2] In mid‑May of 2004, the inmates at Kent Institution were upset over various stabbings, violent incidents and lock‑down searches. This led the Warden to issue blanket permission for Correctional Officers (COs) employed on the Living Units of the Institution to routinely carry Oleoresin Capsicum Spray (OC spray) or pepper spray on their duty belts.

[3] Daily threat risk assessments (TRAs) continued to assess the mood and demeanour of the inmates, and on July 26, 2004, the Warden determined that Kent Institution had returned to a normal manageable state. He rescinded the blanket authorization for COs on the Living Units to routinely carry OC spray on their duty belt. If those COs required OC spray, they would once again have to obtain it from the Control post located at one end of the range.

[4] On July 26, 2004, sixteen (16) COs affected by the decision of the Warden refused to work because they felt unsafe not wearing their OC spray. The employer investigated the refusal to work and concluded that a danger did not exist for the 16 COs. Those employees continued to refuse to work and a Health and Safety Officer from the Labour Program of the department of Human Resources and Skills Development Canada (HRSDC) was informed of the continued refusals to work.

[5] The Health and Safety Officer investigated into the refusals to work and decided that the danger alleged by the employees constituted a normal condition of employment, thereby deducing from this that a danger under the Code did not exist. He orally advised the employer and employees of his decision on July 26, 2004, and confirmed his decision in writing on July 28, 2004.

[6] On August 3, 2004, the 16 COs appealed the decision of the Health and Safety Officer to an Appeals Officer and I was seized of the appeal. Subsequently, the parties attempted to resolve the matter between them. Ultimately, hearings were scheduled on April 6 – 10 and July 27 – 28, 2009.

[7] HSO O’Byrne testified at the appeal hearing, referring to his report entitled Investigation Report and Decision dated August 4, 2004. Submission of the Report by the HSO to this Appeals Officer was unopposed by parties.

Issues

[8] This appeal raises the following issues for determination:

• whether a danger existed on July 26, 2004, for the sixteen COs who refused to work; and
• should I decide in the affirmative, whether or not the danger constituted a normal condition of employment.

Submissions of the Parties

A) Appellants’ submissions

[9] C. Blanchette, the employees’ representative, submitted 49 exhibits and produced 6 witnesses. The six witnesses were:

• CO Steven Latulippe
• Parole Officer Leighton Johnson (former CO at Kent Institution)
• CO Karmen Aulakh
• CO Juan Verville
• CO Tim Sterkenburg
• Inspector John McKay, Vancouver Police

[10] C. Blanchette maintained that OC spray borne on the duty belt of COs is an essential safety tool, as their work in the Living Units brings them in contact with inmates up to 90 % of the time. She maintained that OC spray deters assaults, quells incidents quickly and assists COs to regain and retain control of a situation. C. Blanchette cited the following:

• the CO I and II job descriptions, the “Block Post Order” at Kent Institution, the “Commissioner’s Directive 567, Management of Incidents” and the “Emergency Planning” document dated 2006, according to which COs have the status of “Peace Officer” and have a responsibility to intervene in inmate incidents;
• testimony by COs that the response time to an incident alarm varies between 15 to 45 seconds. C. Blanchette maintained that injury to COs on a Living Unit can occur from kicking, punching and stabbing during this period;
• testimony by CO Aulakh that staff safety is paramount in responding to an inmate incident, but that it is not always clear cut how to achieve the two requisites of intervening immediately and protecting one’s health and safety;
• evidence that the COs from the other Living Units are usually first to arrive on the scene in the event of an incident alarm. According to the evidence, this is because Inmate Movement Control Officers (IMCs) who are required to respond to incident alarms and who are equipped with OC spray, could be deployed anywhere in the Institution. C. Blanchette referred to the testimony of CO Verville that the principal role of a correctional officer is to supervise the response, not to get involved in the incident;
• documents submitted by Inspector J. McKay that demonstrate that OC spray is an effective tool for preventing assaults on law enforcement officers and decreasing injuries to law enforcement officers and assailants when an assault occurs;
• Dr. Gabor, who testified for the respondent, agreed in cross-examination that OC spray is at least 85% effective;
• testimony by CO Sterkenburg and CO Latulippe that OC spray is effective for deterring or quelling violence, even if not used. They cited incidents where just pointing the dispenser was sufficient to gain compliance;
• CSC has decided that simply pointing the OC spray dispenser does not constitute use of force;
• testimony by COs that without OC spray, COs must resort to physical handling when verbal interaction is unsuccessful or impracticable. This has resulted in longer scuffles and injury both to the inmates and the COs involved. CO Verville testified that he was absent from work for 4 months as a result of an injury due to physical handling;
• testimony by COs that physical handling exposes COs to disease contracted from inmate bodily fluids. Exposure can be incidental to the scuffle or result from an inmate using bodily fluids as a weapon;
• testimony by COs that OC spray, on its own or in combination with physical handling, is effective in reducing the duration of the incident and thereby reducing the chance of injury or the severity of injury. COs testified that even where the effectiveness of OC spray is reduced in the case of inmates on drugs or inmates focused and intent on assaulting an officer, OC spray impairs the attackers by causing closing of their eyes, thereby making physical handling easier. This, they opined, lessens the duration of the scuffle and the risk of serious injury;
• the uncontested evidence by J. McKay and the COs that size and strength matter when trying to use physical handling to control an inmate. Without OC spray on their duty belts, COs of smaller stature and lesser strength will be at a significant disadvantage if forced to revert to physical handling; and
• the evidence by J. McKay that OC spray generally has no long lasting effect.

[11] According to C. Blanchette, the CSC argument against routinely issuing OC spray to COs on the Living Units is based on the fact that the frequency of assaults at Kent Institution is low and the assaults have not resulted in any serious bodily injury or death. According to C. Blanchette, the OMS incident/injury data that CSC provided to Dr. Gabor and submitted at this hearing is flawed and no weight should be given to it for the following reasons:

• the decision by CSC to rate injuries as non‑serious bodily injury is not consistent with the Code. C. Blanchette submitted that I must consider all injuries and give attention to the definition of disabling injury in Part XV of the Canada Occupational Health and Safety Regulations (Regulations);
• the data that CSC provided to Dr. Gabor and submitted at this hearing does not capture all of the injuries to COs , the severity of those injuries or the amount of loss‑time from work COs have suffered;
• the deficiencies in the CSC injury statistics are not the fault of the COs. She stated that COs complete two forms: one is the Officer Statement/Observation Report which is a security document, and the other is the workers compensation board application. C. Blanchette submitted that as a security document, the Officer Statement/Observation Report is not a wrap‑up of injuries suffered by COs in their job;
• the testimony by Warden Knopf that the table of data that CSC provided to Dr. Gabor and submitted at this hearing did not include information regarding the injury, its severity or days of loss-time. In some cases, injuries reported as non‑serious bodily injuries were in fact major injuries;
• the document entitled “Lockdown, Kent Institution - Plan of Action”, dated 03-06-16, submitted at this hearing, specifies that the injuries suffered by CO Johnston were minor. C. Blanchette noted that CO Johnston was actually off work for ten weeks and was unable to return to his pre‑injury occupation. C. Blanchette maintained that this was a disabling injury, but stated that CSC takes the position that there is no danger unless there is a serious bodily injury or death;
• the table of data that CSC provided to Dr. Gabor covered less than 2 fiscal years;
• Warden Knopf agreed that CSC statistics are not cross-referenced with workers compensation applications;
• the Health Care unit at Kent Institution classifies and reports injuries as being serious bodily injury, or not, despite the fact that it only provides first aid for staff, and COs see their own physicians following an injury;
• the CSC table of data that CSC provided to Dr. Gabor and submitted at this hearing does not include data to show that, in fact, there has been a significant increase in the number of assaults at Kent Institution from one year to the next. The kinds of assaults include kicking, punching staff, which Dr. Gabor agreed, could cause injury. C. Blanchette also noted that where two staff members are assaulted in the same incident, this is recorded as a single assault; and
• regarding the report by the 2008 Board of Investigation that investigated into the section 127.1 internal complaint by two COs, Warden Knopf agreed with the conclusion that there was an increase in the number of assaults on staff.

[12] C. Blanchette submitted that while the employer claims that CSC policies, procedures and orders mitigate risk to a safe level, it offered no evidence that supports this. C. Blanchette maintained that the Federal Court stated in the Millhaven1 decision that the employer must demonstrate the effectiveness of its policies. C. Blanchette noted the following as evidence that risk has not been mitigated to a safe level:

• the evidence from the CO job description, Dr. Gabor, J. McKay and COs was that the TRA can neither predict nor prevent a spontaneous assault by an inmate;
• the TRA for OC spray lacks criteria and transparency regarding the rationale for issuing or not issuing OC spray to COs on the Living Units. She stated that COs do not accept the position held by the employer that the TRA process is sound;
• the Board of Investigation established to investigate into an internal complaint by COs pursuant to section 127.1 of the Code, confirmed on December 2, 2008, that not all CO Officer Statement/Observation reports are reviewed and considered by the Correctional Manager when deciding whether or not OC spray should be issued to COs;
• the same Board of Investigation noted the lack of participation by the Joint Occupational Safety and Health (JOSH) Committee in the TRA process;
• the current TRA process is the same deficient one resorted to on the eve of the 2003 riot when the Warden decided that there was no need to issue OC spray to COs on the Living Units. She noted that subsequently, the employer decided that OC spray would be issued to the COs;
• at cross examination, Warden Knopf agreed that despite all measures in place at Kent, there is no guarantee that there are no drugs or shanks in the Institution;
• Personal Portable Alarms (PPA) are not always reliable in indicating to first responders where an incident is occurring. PPAs are generic to a Living Unit and do not indicate on which tier an incident is occurring. The evidence was that first responders once went to the wrong tier; and
• the evidence establishes that when an incident occurs, every second counts and that delays in obtaining OC spray have a positive correlation with the severity of an injury.

[13] C. Blanchette argued that the decision by CSC to not routinely issue OC spray to COs working on the Living Units is inconsistent with the use of force and CO training and exposes COs to danger . She maintained that the evidence shows that:

• the CSC use of force model, the Situational Management Model (SMM), is similar to models used by other law enforcement agencies. C. Blanchette pointed out that the SMM guides staff on how to respond to inmate human behaviour and that all CSC staff are trained to use this model;
• the SMM model confirms that human behaviour is unpredictable and inmate behaviour can go from cooperative to grievous bodily harm or death instantly and the escalation is not necessarily progressive;
• according to the SMM, the use of OC spray precedes resorting to physical handling. Not routinely issuing OC spray to COs working on the Living Units means that COs responding to a PPA call for staff assistance must resort to physical handling. OC spray comes before physical handling because physical handling leads to longer fights, longer struggles and exposes COs to greater risk of injury.

[14] According to C. Blanchette, for OC spray to be an effective tool, COs must be aware that they have it at all times and develop the ability to use the tool in times of high stress. She pointed to the evidence that:

• CO Johnston had OC spray on his duty belt at the time of the 2003 riot, but did not have the reflex to use it when under attack. He simply forgot he had the OC spray because some days he was issued OC spray and other days he was not;
• J. McKay testified that safety tools have to be present at all times; and
• the employer and employee representatives on the two person Board of Investigation into the section 127 internal complaint by two COs, both recommended that the first responder to an incident be issued OC spray.

[15] C. Blanchette referred to Dr. Gabor’s concern that an OC spray dispenser be taken from a CO and used against the officer. However, according to C. Blanchette, no such incident has occurred at Kent Institution and the employer has presented no evidence that this has occurred.

[16] C. Blanchette disagreed with the concern expressed by CSC that COs could become too reliant on OC spray and overuse it to resolve incidents instead of gaining inmate compliance through the use of less aggressive means. She maintained that over reliance is not consistent with the Use of Force model and the training that COs receive. She also pointed out that COs who overuse OC spray are subject to criminal prosecution and to internal reviews and discipline if found guilty of using excessive force to respond to inmate behaviour. Furthermore, inmates can complain to the Royal Canadian Mounted Police, the Minister and to Members of Parliament if they are subjected to excessive force.

[17] C. Blanchette argued that dynamic security and static security go hand in hand and that it is not a matter of one replacing the other. C. Blanchette pointed to the fact that COs are proud and professional and want to be safe when carrying out dynamic security.

[18] In this regard, C. Blanchette maintained that the respondent never addressed the testimony by COs that they felt more confident when carrying OC spray on their duty belts and that this made them more effective in practicing dynamic security.

[19] C. Blanchette disagreed that routinely issuing OC spray to COs on the Living Units could increase tension in the Institution. She noted that testimony by Warden Knopf that static security measures, such as the installation of surveillance cameras, the bolting down of tables and appliances, were carried out in the Living Units at Kent Institution without incident. She argued that CSC presented no evidence that these measures created tension in the Living Units.

[20] Ms. Blanchette pointed out that the only evidence of the employer that OC spray could increase tension and upset the balance was the incident in the gymnasium. The position of CSC was that the inmates stopped advancing on COs only when the latter told inmates that OC spray had not been used. C. Blanchette disputed this position and argued that the evidence shows that the inmates backed off when they were told by COs that OC spray would be used.

[21] Ms. Blanchette pointed out that in my decision in Parks Canada Agency and Douglas Martin2, I determined that the frequency of injury is not a determinant factor relative to a finding of danger. She also pointed out that the testimony of park wardens was accepted. Finally, she pointed out that the number of assaults per year on park wardens was less than the number of assaults per year on COs at the Kent Institution. She added that the Offender Management System (OMS) incident/injury data presented by CSC for the year 2008‑2009 only covered a period of nine months.

[22] C. Blanchette cited the Eric V. and Correctional Service of Canada3 decision of Appeals Officer Serge Cadieux, dated February 27, 2009, and argued that the risk in this case is one that could be controlled through protective measures.

[23] Ms. Blanchette stated that the employer relies on its data on the low number of assaults and the low number of serious bodily injuries to claim that an injury will not happen or the risk of injury is remote. She argued that the superior courts have ruled that one is dealing with the possibility of injury as opposed to the probability of injury.

[24] C. Blanchette asked that I rescind the decision of HSO O’Byrne that a danger did not exist and issue a direction to CSC.

B) Respondent’s submissions

[25] R. Fader, Counsel for the respondent, submitted 54 documents and produced two (2) witnesses. The two witnesses were:

• Dr. Thomas Gabor, Professor, University of Ottawa; and
• Diane Knopf, Warden, Kent Institution.

[26] R. Fader stated that CSC relies on the expert opinion of Dr. Gabor. The latter was recognized by the Occupational Health and Safety Tribunal Canada (Tribunal) as an expert in the area of criminology, qualified to give expert testimony on the pros and cons of routinely issuing OC spray to COs on the Living Units at Kent Institution. Counsel stated that Dr. Gabor was asked by CSC to assemble evidence on the net effect of equipping COs with OC spray, given the security measures in place at Kent Institution. Specifically, CSC asked Dr. Gabor to address the question of whether the overall effect of issuing OC spray to COs on a routine basis would enhance or undermine order and security within Kent Institution.

[27] R. Fader pointed to the testimony of Dr. Gabor regarding the concerns he identified regarding the routine issuance of OC spray to COs on the Living Units:

• there is a delicate balance between static security and human treatment, and management’s control within a correctional setting constitutes a selective balance between coercive control and remunerative incentives;
• the routine issuance of OC spray, a coercive offensive weapon, to COs on the Living Units could alter the climate of an institution;
• the sharing of information is critical to the safety and security of staff as they can learn about threats, impending attacks or general misconduct. Since intelligence gathering relies on cooperation from the inmate population, the more an institution relies on coercive control, the more difficult it becomes to generate intelligence information to prevent violence from occurring;
• the routine issuance of OC spray to COs on the Living Units might bring about over reliance on this coercive means and less reliance on dynamic control. If OC spray were used in a punitive fashion rather than purely defensively, it could result in a less safe working environment for all staff.

[28] R. Fader argued that the 2003 Riot at Kent Institution demonstrates how a minor change such as one inmate population serving another inmate population sparked a riot.

[29] According to R. Fader, Dr. Gabor stated that his research showed that:

• OC spray is only about 75% effective and may not be effective on individuals who are extremely focused on succeeding or under the influence of alcohol or drugs;
• Inmates could take OC spray from COs and use it against them; and
• the decision to routinely issue OC spray to COs on the Living Units could create a type of arms race with inmates.

[30] R. Fader maintained that the testimony by CO Latulippe regarding the incident in the gymnasium confirmed that OC spray can provoke inmates and cause a violent reaction. He also maintained that the incident on A‑Block supports Dr. Gabor’s opinion that over reliance on OC spray could place officers in a more dangerous situation. He pointed out that the proper response was to escape and that is what CO Latulippe did.

[31] According to R. Fader, the testimony by CO Aulakh confirmed that OC spray is ineffective on people with mental problems and/or on drugs.

[32] R. Fader argued that the incidents cited in CO Sterkenburg’s testimony fail to establish that there have been injuries as a result of OC spray not being routinely available on the person.

[33] R. Fader pointed out that to appreciate the pros and cons of introducing OC spray on a routine basis, one must consider the current situation at Kent Institution. He stated that the evidence through Warden Knopf concerning assaults on staff was summarized in the OMS incident/injury data that CSC provided to Dr. Gabor and submitted at this hearing.

[34] R. Fader noted that Dr. Gabor commented in his report that assaults against COs involving major bodily injuries or fatalities are rare. Dr. Gabor cited Light (cited in Wortley, 2002:118) who examined assaults on guards in 31 New York state prisons and found that less than 2% of inmates had assaulted an officer during the previous year.

[35] R. Fader pointed to the statement by Dr. Gabor that the data on Kent Institution shows that over the past two years, there had been fewer than two dozen injury-causing assaults occurring at the rate of about one per month. Dr. Gabor noted that there were 135 incidents involving threats not resulting in injuries or less than six threats per month. Dr. Gabor added that all the injuries were classified as non‑serious bodily injuries (non-SBI), consisting usually of lacerations and abrasions. Dr. Gabor further observed that CSC’s record of incidents indicated that few injuries required outside medical care and few, if any, resulted in hospitalization.

[36] R. Fader maintained that the COs who testified referred to incidents where they received non‑SBIs as being the result of not having OC spray on their duty belts. He pointed out that these incidents were not documented in the Officer Statement/Observation Report which is to be completed for every security incident.

[37] R. Fader maintained that based on the evidence by Warden Knopf and the CSC policies, directives, standing orders introduced in evidence, it is clear that CSC has addressed every area of risk within Kent Institution.

[38] R. Fader further maintained that it is clear from the documents submitted that CSC places great emphasis on training and on-going training.

[39] R. Fader, the evidence shows that there is a morning briefing every day where the decision is made on whether or not to issue OC spray. Furthermore, the testimony by Warden Knopf was that the threat risk assessment is on‑going throughout the day as information becomes available. Moreover, the evidence was that threat risk assessments can be conducted at any time and Correctional Managers have the authority to issue OC spray on an emergency basis. He pointed out that CO Verville confirmed this information in his testimony.

[40] R. Fader argued that the evidence shows that OC spray was available every time it was required by COs, and that this should be the backdrop against which the analysis of the pros and cons of OC spray is conducted.

[41] R. Fader argued in the alternative that the policies, procedures, training and protective equipment in place and in use at Kent Institution mitigate danger to the extent reasonably possible, so that any danger that remains is residual or a normal condition of employment.

[42] R. Fader added that the test for normal condition of employment has been articulated in the Federal Court and confirmed by the Federal Court of Appeal4 as follows:

• the concept distinguishes methodology from essential characteristics;
• the level of risk identified is not an essential characteristic but depends on the method used to perform a job or activity;
• therefore, a normal danger is not a danger connected with a methodology that could usually be altered in order to eliminate or avoid the danger.

[43] R. Fader asked that the appeal be dismissed in its entirety.

Analysis

Did a Danger Exist For the Sixteen COs Who Refused to Work?

[44] The first issue that I must address is whether or not a danger existed on July 26, 2004, for the 16 COs who refused to work because CSC no longer routinely issued OC spray to COs employed on the Living Units.

[45] Danger is defined at section 122 of the Code as follows:

“danger” means any existing or potential hazard or condition or any current or future activity that could reasonably be expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected, or the activity altered, whether or not the injury or illness occurs immediately after the exposure to the hazard, condition or activity, and includes any exposure to a hazardous substance that is likely to result in a chronic illness, in disease or in damage to the reproductive system.

[46] COs at Kent Institution are exposed to a potential hazard. That potential hazard is spontaneous assault by maximum security inmates. The evidence in this case confirms that spontaneous attack by an inmate can occur without provocation and without warning. The evidence also confirms that inmate behaviour can go from cooperative behaviour to behaviour causing grievous bodily harm or death without a progressive escalation of aggressiveness.

[47] In Verville v. Canada (Correctional Services)5, Justice Gauthier stated at paragraph 36 of her decision that the definition of danger only requires one to ascertain the circumstances in which a potential hazard or condition or future activity could be expected to cause injury and to establish that such circumstances will occur in the future as a reasonable possibility:

[36] …Rather, looking at her decision as a whole, she appears to agree that the definition only requires that one ascertains in what circumstances it could be expected to cause injury and that it be established that such circumstances will occur in the future, not as a mere possibility but as a reasonable one.

[48] To conclude that a danger existed for the sixteen COs who refused to work, I must ascertain the circumstances in which the hazard could reasonably be expected to cause injury before the hazard can be corrected, not as a mere possibility but as a reasonable one.

[49] In this regard, the Federal Court addressed in the aforementioned decision the types of evidence that a trier of facts could accept as sufficient to support a finding of danger. Justice Gauthier stated, at paragraph 51, that a trier of fact can rely on expert opinion, on experience-based expert opinion of ordinary witnesses and on inference arising logically or reasonably from known facts. I have interpreted this as job‑experience based opinion. Paragraph 51 reads:

[51] Finally, the Court notes that there is more than one way to establish that one can reasonably expect a situation to cause injury. One does not necessarily need to have proof that an officer was injured in exactly the same circumstances. A reasonable expectation could be based on expert opinions or even on opinions of ordinary witnesses having the necessary experience when such witnesses are in a better position than the trier of fact to form an opinion. It could even be established through an inference arising logically or reasonably from known facts.

[50] For the record, I find the COs who testified to be experienced, trained, leaders in terms of training other officers and in terms of heading up special units. I found them to be thinking, rational and disciplined professionals.

[51] R. Fader argued that J. McKay’s expertise was on the use of force and that his view regarding the predictability of inmate behaviour and the impact of routinely issuing OC spray to COs employed on the Living Units was beyond his expertise. However, J. McKay’s views regarding criminal behaviour are valid to the extent that they directly relate to his interpretation and application of use of force models. Dr. Gabor stated that his research confirmed that there are no specialists and few studies regarding spontaneous assault despite the fact that much of the violence in prisons is spontaneous, making J. McKay’s evidence more persuasive where it applies to use of force.

[52] In this regard, the evidence persuades me that COs have the status of Peace Officer and that COs are responsible for intervening where an inmate may be harmed. I am further persuaded that the work of COs involves a conflict between duty to intervene and duty to protect themselves and their partners. Given the dynamics associated with an incident, it is not clear or self evident from the evidence as to how COs are to achieve the two opposed requisites. Given the strong language in the Correctional Officers job descriptions and post orders, I expect that the tendency of COs will always be to intervene.

[53] While Warden Knopf testified that one of the COs could run to the Control post for OC spray, the uncontested testimony of COs was that they cannot leave their partner alone on a range during an incident.

[54] Having to run to the Control post to obtain a tool for deterring and quelling inmate violence risks an escalation of any incident and increases the risk of serious injury to the COs.

[55] The uncontested evidence was that there can be delays retrieving OC spray from the Control post as a result of the post officer being busy with operating gates and doors or other duties.

[56] COs employed on the Living Units are, by virtue of their assignment, on scene to respond to an incident. Consequently, the evidence is that in the event of an assault, COs are on their own anywhere from 15 to 45 seconds until back-up arrives.

[57] The uncontested evidence was that the TRA process, used to determine whether or not OC spray will be issued to COs employed on the Living Units on any given day, cannot predict human behaviour or when a spontaneous attack will occur. As Dr. Gabor stated, “Offenders usually do not telegraph their intentions and it is they who pick the timing and the location of their attacks.”

[58] I find from the evidence that the potential hazard could reasonably be expected to cause injury to a CO before the hazard could be corrected and so a danger exists.

Does the Danger Constitute a Normal Condition of Employment?

[59] Having decided in the affirmative that a danger existed at the time of HSO O’Byrne’s investigation and finding of danger, I must now decide whether or not that danger constitutes a normal condition of employment.

[60] On January 27, 2010, the Federal Court of Canada upheld a decision6 of the Tribunal regarding the interpretation to be given to the concept of “normal condition of employment.” This decision defines a danger that constitutes a normal condition of employment as residual in nature. It is the danger that remains after the employer has taken all necessary steps to eliminate, reduce or control the hazard, condition or activity and for which no direction can reasonably be issued under subsection 145(2) of the Code to protect the employees.

[61] Consequently, in order to determine that a danger constitutes a normal condition of employment, that danger must be one that cannot be controlled through the protective measures set out under the Code. Such a danger would not justify invoking the right of refusal or continuing to refuse to work once it had been determined to be a normal condition of employment.

[62] My analysis of the evidence should enable me to decide whether or not the employer has taken all necessary steps to eliminate, reduce or control the hazard such that no direction to protect the employees could be issued under subsection 145(2) of the Code.

[63] In this regard, I stated in my decision in Parks Canada Agency7, at paragraph 849, that I agreed with a statement by Sergeant Butler that the "low frequency, high risk" principle should apply. I agree with C. Blanchette that the principle applies to COs in this case. Paragraph 849 reads:

Sergeant Butler testified that any policy that determines the need for protective equipment should be premised on the "low frequency, high risk" principle. This principle is grounded in the belief that where the consequences of a particular event are dire or critical for an individual, prevention measures must be taken to prevent that dire outcome, regardless of the likelihood of the event occurring. It also holds that, where the potential outcome of exposure to risk is dire or critical for a person, mitigating measures to prevent that dire outcome must be taken, regardless of the likelihood of the exposure occurring. I do not disagree with that principle [my underline].

[64] The submissions of the parties focused on the question as to whether or not routinely issuing OC spray to COs on the Living Units mitigated the risk of inmate assault for the COs who refused to work.

[65] From the outset, the respondent agreed that OC spray is useful for deterring and quelling inmate violence and that is why it is available to COs on the Living Units at the Control post.

[66] In his report, Dr. Gabor wrote that there are two fundamental approaches to institutional security. One approach is static security which involves the use of physical coercive control over inmates including hardware (locks, bars etc.), technology (e.g., cameras) and restraints to deal with troublesome inmates or those being transferred. Dr. Gabor stated that static control is designed to suppress violations.

[67] Dr. Gabor wrote that a second approach is dynamic security, which emphasizes the human aspect and takes the view that humanizing institutions constitutes the best approach to institution stability.

[68] Dr. Gabor wrote that both approaches to security are present in all prisons and the emphasis may vary considerably. He reported that there is a delicate balance between static security and human treatment. He added that scholars have recently noted that the delicate balance between security and human treatment that institutions must maintain could be compromised by increasing the emphasis on coercive control methods.

[69] Dr. Gabor wrote that his task was to assemble evidence on the net effect of equipping COs with OC spray, given security measures already available to personnel within maximum security institutions such as Kent. He stated that the reference to “net effect” acknowledges that OC spray will have both positive and negative effects. He stated that the issue he addressed in his report is whether the overall effect of issuing OC spray to COs on a routine basis would enhance or undermine order and security within Kent Institution.

[70] Dr. Gabor referred to the OMS incident/injury data provided to him by Kent Institution. He found that during the last two years, there had been 158 incidents, of which only 23, or one per month, produced an injury to a CO and none were described as being serious. Of those 158 incidents, the majority involved threats, the throwing of objects at officers, and actions such as spitting. Just a quarter of all incidents involved a physical attack such as punching or kicking an officer. Taking all this into account, Dr. Gabor found that there were only 12 incidents in which non‑serious injuries were inflicted on a CO. He stated that what is unclear regarding these 12 incidents is whether the issuance of OC spray on a routine basis to COs would have deterred the incidents or diminished their gravity. If yes, the next question is whether the numbers justify risking the adverse effects related to issuing OC spray to COs on a routine basis, which includes the possibility that inmates will view the action as a provocation and become more difficult to manage.

[71] Dr. Gabor identified numerous potential negative impacts that could have a deleterious effect on institutional safety and COs safety if OC spray was issued to the COs. He concluded that, given the overall low frequency of incidents and injuries to COs reported in CSC statistics, these potential negative impacts outweigh the positive impacts.

[72] At the outset of his report, Dr. Gabor did state that there was no body of controlled rigorous studies on the precise question of the impact of issuing OC spray to COs as standard issue. He also confirmed at cross examination that there is no body of controlled rigorous studies on the issue of spontaneous assault on COs by inmates. It is within the context of these two caveats that I assessed the expert evidence of Dr. Gabor.

[73] My analysis of Dr. Gabor’s expert opinion and testimony will address:

• the reliability of the OMS incident/injury data that Dr. Gabor relied on for his conclusion that the potential negative impacts of routinely issuing OC spray to COs on the Living Units outweighs the positive impacts;
• the SMM and the OC Spray; and
• an assessment of the potential adverse impacts identified by Dr. Gabor.

[74] The following evidence established that the OMS incident/injury data provided to Dr. Gabor does not accurately capture all of the injuries to COs, the severity of the injuries or the severity of the lost time:

• Warden Knopf agreed with C. Blanchette that the Officer Statement/Observation Report is a security document. Warden Knopf also agreed that the OMS does not cross-reference worker compensation board applications or family doctor reports. C. Blanchette referred to the testimony of Warden Knopf that, in some cases, some injuries reported as non‑serious bodily injuries were, in fact, serious injuries;
• Situation where two staff members are assaulted in the same incident is recorded as one assault;
• Warden Knopf acknowledged at cross examination that she was aware of occasions where COs booked off work the day following a physical handling incident even though there was no record of an injury;
• the injuries suffered by CO Johnston during the 2003 Riot at Kent Institution were recorded and reported by CSC as minor. However, the fact is that CO Johnston was off work for 10 weeks and was unable to return to his pre‑injury occupation. C. Blanchette held that this was a disabling injury under the Code, but it does not fall within the CSC definition of a non-serious bodily injury or death;
• CO Verville was injured while physically handling an inmate. The injury was recorded in the OMS as a minor injury, but it ended up to be a loss work injury of 4 months. This fact was never reflected in the OMS; and
• the report by a Board of Investigation dated 2008‑12‑02 confirmed that there had recently been an increase in assaults over one year at Kent Institution.

[75] It was also shown that CSC’s definition of a non‑serious bodily injury is not in accordance with the Code. For example, the document entitled, “Classification of Serious Bodily Injury for a definition of Serious Bodily Injury (SBI) as defined in Commissioner’s Directive 568-1,” defined an SBI as:

SBI - any injury as determined by Health Services personnel has having the potential to endanger life, or which results in permanent physical impairment, significant disfigurement or protracted loss of norm functioning. It includes but is not limited to major bone fractures, the severing of limbs or extremities, and wounds involving damage to the organs.

[76] The definition of a “disabling injury” in Part XV of the Canada Occupational Health and Safety (COHS) Regulations, entitled, Hazardous Occurrence Investigation, Recording and Reporting is broader in its application than the CSC definition of a SBI. This confirms that there appears to be under reporting relative to the severity of the injuries and/or the severity of the lost time. Section 15.1 and subsection 15.8 (1) of Part XV of the COHS Regulations state:

15.1 In this Part,

“disabling injury” means an employment injury or an occupational disease that

(a) prevents an employee from reporting for work or from effectively performing all the duties connected with the employee’s regular work on any day subsequent to the day on which the injury or disease occurred, whether or not that subsequent day is a working day for that employee, …

15.8 (1) The employer shall make a report in writing, without delay, in the form set out in Schedule I to this Part setting out the information required by that form, including the results of the investigation referred to in paragraph 15.4(1)(a), where that investigation discloses that the hazardous occurrence resulted in any one of the following circumstances:

1. a disabling injury to an employee;
2. an electric shock, toxic atmosphere or oxygen deficient atmosphere that caused an employee to lose consciousness;
3. the implementation of rescue, revival or other similar emergency procedures; or
4. a fire or an explosion.

[77] From the evidence, I am persuaded that the defects in the OMS incident/injury data that CSC provided to Dr. Gabor and submitted at this hearing are sufficient to cast doubt with regard to Dr. Gabor’s conclusion that the anticipated adverse effects of routinely issuing OC spray to COs on the Living Units outweighs the benefits.

[78] Dr. Gabor reported that there is a delicate balance between static security and dynamic security and that the balance differs from institution to institution. However, Dr. Gabor did not review or comment on the appropriateness of the static and dynamic security balance at Kent Institution. Specifically, Dr. Gabor did not appear to look at OC spray in terms of CSC policies, procedures and training for assessing the pros and cons of OC spray for mitigating the risk of inmate assault on COs employed on the Living Units. Instead, Dr. Gabor appears to have used the OMS data provided to him by CSC as a proxy for this.

[79] The evidence regarding the SMM and the use of OC spray relative to CSC policies, procedures and training was as follows:

• the SMM is similar to use of force models in other law enforcement agencies and all CSC staff is trained on this model;
• the SMM specifies that COs constantly assess the situation in terms of behaviour, intelligence and situation. When an inmate’s behaviour is cooperative, the SMM specifies that appropriate CO response is dynamic security, whereby the CO interacts peacefully with the inmate to act as a role model and to assist the inmate in his programs;
• dynamic security, OC spray and physical handling are all on the same response continuum to inmate behaviour. Inmate behaviour can range from cooperative, to verbally resistant, to physically uncooperative, to assaultive, to grievous bodily harm or death. The only thing that dictates what response is appropriate is inmate behaviour. This was not disputed by the employer;
• J. McKay testified that officer presence and communication skills are the most successful response option and estimated that the use of physical force options occurs only 1% to 2% of the time. J. McKay said that this was consistent with the Calgary Police Service who estimated that physical force is required in only one percent of incidents. However, J. McKay testified that while it is the stated goal of every law enforcement agency to resolve every situation with communication skills, the reality is that officer presence and communication skills do not always succeed. Finally, J. McKay opined that some subjects cannot be talked into cooperating and often communication is precluded by a subject’s level of violence or a spontaneous attack. J. McKay stated that when presence and communication fail, an officer must escalate to some form of physical control for defence and to gain control of the subject and the situation; and
• the SMM is a guide to staff to ensure that more force is not used by a COs than what is indicated by the inmate’s behaviour. COs I & II have the status of Peace Officer and the evidence of Inspector McKay was that section 34 of the Criminal Code of Canada (CCC) provides for the use of deadly force response in the face of a deadly force attack. The evidence of J. McKay was also that section 26 of the CCC specifies that anyone using excessive force will be held criminally responsible. J. McKay noted that COs also face internal review and disciplinary action for excessive use of force.

[80] The evidence also establishes that COs not equipped with OC spray must resort to physical handling for an inmate who is physically uncooperative or assaultive. The undisputed evidence is that physical handling results in longer, more violent fights where both the COs and inmates can be physically injured in the exchange.

[81] I am persuaded by all of this that Dr. Gabor’s failure to consider the importance of the SMM and the role of OC spray therein as it relates to management of security risk at Kent Institution puts Dr. Gabor’s conclusion in further doubt.

[82] Since there is no evidence that Dr. Gabor considered the potential negative adverse impacts he identified in the context of actual circumstances at Kent Institution, I will consider them now. This is because it would be inconsistent with the Code for anyone to require the use of protective equipment that had the net effect of increasing risk to employee health and safety rather than decreasing it.

[83] Dr. Gabor and CSC maintained that the presence on COs duty belts of OC spray could be perceived by inmates as an increase in coercive control and increase inmate tension or provoke inmates to become more violent in an incident. However:

• the evidence by Warden Knopf in this case was that there have been significant changes regarding increased static security at Kent Institution. The changes have involved the installation of additional cameras in the Living Units and bolting down furniture and appliances. In addition, COs have been issued stab‑proof protective vests and handcuffs. No evidence was presented by the respondent that any of these measures provoked inmates or increased tension in the prison;
• the appellants’ witnesses testified that inmates see COs with OC spray on their duty belts on a daily basis in the gymnasium and when Correctional Managers, IMCs and COs from the Segregation and Enhanced Structure Unit respond to alarms. Inmates also see OC spray on the duty belts of COs employed in the Living Units when management determines that the threat risk assessment is high; and
• CO Verville testified that COs are issued OC spray from time to time and that he has observed no negative reaction from inmates on those occasions.

[84] While I have no doubt that inmates will notice when COs employed on the Living Units have OC spray on their duty belts, I am persuaded by the evidence that the benefits of routinely issuing OC spray to COs on the Living Units are not outweighed by this potential adverse impact.

[85] Dr. Gabor and CSC maintained that COs could become too reliant on OC spray for responding to inmate behaviour and thereby bypass the dynamic security, staff presence, verbal intervention, conflict resolution, negotiation or verbal orders options specified in the SMM. However:

• the testimony by J. McKay was that this is a policy and training issue for CSC. He agreed that if COs use excessive force, which would include over reliance on OC spray, they would open themselves to criminal prosecution and internal discipline. In her testimony, Warden Knopf confirmed that COs are subject to penalties and discipline for overuse of or over reliance on OC spray;
• the testimony by J. McKay was that officer presence and communication skills are the most successful response options and noted that COs estimate that they use physical force options only 1% to 2% of the time. Inspector McKay stated that this is consistent with the Calgary Police Service who estimated that physical force is required in only one percent of incidents; and
• CO Sterkenburg testified that it is the practice of COs to be discrete when they un-holster OC spray to avoid aggravating incidents where it might still be possible to regain control of an incident without its use. He stated that having the OC spray makes the CO more confident in trying to resolve an incident through dynamic security. He added that while OC spray may have a tendency to aggravate a situation, it normally is largely instrumental in reducing the intensity of situations.

[86] The respondent referred to the incident that occurred in the gymnasium where CO Latulippe entered the gymnasium and pointed a Mark 9 OC spray canister. Whether the latter was justified to act in this manner was unclear to me from the evidence. However, what is clear is that CO Latulippe did not follow the practice referred to by CO Sterkenburg. In my opinion, the significant point to retain here is that COs, in the end, applied the SMM and through verbal intervention, de-escalated and resolved the matter. If CO Latulippe’s actions constituted an excessive use of force, then the employer should have addressed it as such. There was no evidence that this was done.

[87] Dr. Gabor maintained that if CSC routinely issued OC spray to COs on the Living Units, those COs might be emboldened to take risks when the appropriate response may be to retreat. In this regard, R. Fader gave as an example the statement by CO Latulippe that he would have dealt with an incident if he had carried OC spray on his duty belt. R. Fader concluded that CO Latulippe did the right thing by not engaging the inmate and cited this as an example of the appropriate and safe measure for the CO being to retreat.

[88] While the example is compelling, I am more persuaded by the testimony of COs that OC spray gives them more confidence when engaged in dynamic security and enables them to have a more measured and calculated response action when responding to inmate behaviour. This was also mentioned in documents submitted by Dr. Gabor.

[89] Dr. Gabor maintained that communications between inmates and COs could be adversely impacted, thereby reducing the effectiveness of the dynamic security process, disrupting inmate programs and reducing the amount of intelligence information provided by inmates. However:

• CO Aulakh testified that the greater part of his experience has been on units where OC spray is carried routinely on the duty belt and is used frequently. CO Aulakh stated that inmates have told him that they feel secure when he is on the range and he attributed this to his professionalism, which is based on the fact that he is trained and equipped with the necessary tools to act professionally. He maintained that dynamic security and static security work together and static security means having the tools to do the job. He felt that the key lies in the guard’s personal interaction with inmates and not the equipment on his duty belt;
• CO Aulakh also testified that he observed no noticeable difference in dynamic security interaction with inmates in the segregation unit where OC spray is used frequently to deal with troublesome inmates. He noted that following the 2003 riots, small populations of inmates disturbed the daily life of other inmates and that this still causes considerable tension in the institution. He stated that he has observed an absence of respect among inmates and that more violent inmates tend to run in smaller packs; and
• CO Verville testified that COs are issued OC spray from time to time and that he has observed no negative reaction from inmates on those occasions. He agreed, however, that inmates notice when COs are carrying OC spray on their duty belts.

[90] Based on the evidence, I am not persuaded that the advantages of routinely issuing OC spray to COs on the Living Units are outweighed by the concern that communications between inmates and COs could be adversely impacted, thereby reducing the effectiveness of the dynamic security process and disrupting inmate programs, and reducing the amount of intelligence information provided by inmates.

[91] Dr. Gabor cautioned in his report that inmates could take the OC spray from COs and use it against them or COs could be hit by back spray from another CO’s OC spray.

[92] The evidence is that OC spray is available to COs from the Control post and that first responders to incidents include officers employed on the Living Units who are routinely issued OC spray. Consequently, officers must continuously be ready for such an eventuality. However,

• J. McKay testified that this is a matter of OC spray equipment retention and training; and
• COs testified that OC spray does not result in a permanent injury and is preferable to resorting to physical handling which often results in injury to the CO and the inmate.

[93] Based on the evidence, I am not persuaded that the concern that inmates could take the OC spray from COs and use it against them, or that COs could be hit by back spray from another CO’s OC spray outweighs the advantages of routinely issuing OC spray to COs on the Living Units.

[94] Dr. Gabor and CSC maintained that OC spray is not 100% effective and that inmates focused on injuring a CO or under the influence of drugs might be able to fight through the OC spray. However:

• J. McKay cited in his testimony the findings of a report entitled TR‑04‑95 Oleoresin Capsicum in Buffalo, dated December, 1994, that was prepared for the Buffalo N.Y. Police. The author of the report stated that OC spray was effective in subduing suspects in about 96% of the time. The report noted that the Cincinnati Police reported having 85% effectiveness, but stated that differences in effectiveness reported may have to do with the way OC spray effectiveness is calculated. For example, one jurisdiction reported 99% effectiveness but included situations where the OC spray had enough impact on the suspect to limit his abilities to resist;
• CO Sterkenburg confirmed that a person who is determined and goal orientated can fight through the effects of OC spray but their capacity is effectively reduced because vision and breathing are impaired by the OC spray. The testimony by CO Sterkenburg was that when a person is exposed to OC spray, the person’s eyes slam shut, they tear profusely, mucus in the nose and throat flows, moist skin (e.g. mouth) feels like it is burning, and the person has the sensation of not being able to breathe, causing a strong sense of panic; and
• COs testified that without OC spray, COs must resort to physical handling when an inmates becomes physically uncooperative or assaultive. COs agreed that size and strength matter when trying to use physical handling to control an inmate and physical handling invariably results in longer incidents and puts officers at a higher risk of injury.

[95] Based on the evidence, I am not persuaded that the concern that OC spray is not 100% effective outweighs the advantages of routinely issuing OC spray to COs on the Living Units.

[96] R. Fader maintained that through the evidence of Warden Knopf and the CSC policies, directives, standing orders introduced in evidence, it is clear that CSC has addressed every area of risk within Kent Institution.

[97] However, the Board of Investigation that looked into an internal complaint by two COs pursuant to section 127.1 of the Code, concluded that the summary of Officer Statement/Observations Report presented at morning operations briefing does not include all such reports. Instead, it observed that Correctional Managers decide which reports will be included in the morning briefing. The Board of Investigation Report recommended against this practice.

[98] The Board of Investigation also found that the mood reports by COs lack the insight, detail and analysis required to provide any meaningful assessment of unit mood. It recommended that this be addressed through staff training.

[99] The Board of Investigation also recommended that Kent Institution ensure that an Operational Adjustment Plan be put in place and developed in conjunction with the Union and the JOSH Committee prior to Operational Adjustments taking place. It also recommended that a TRA be done and shared with staff.

[100] Furthermore, I found no criteria in any of the CSC submitted documents that would suggest that a clear and transparent criterion guides the Warden or other senior official in their decision as to whether OC spray will be issued to COs on the Living Units.

[101] The following evidence presented at the hearing clearly demonstrates that OC spray is effective in reducing the risk of injury to COs employed on the Living Units:

• parties both agreed that OC spray is useful in deterring and quelling inmate violence;
• COs employed on the Living Units, by virtue of their assignment, are on scene to respond to an incident. Since they are not issued OC spray on a routine basis, they must face the situation without the benefit of OC spray until backup arrives. While Warden Knopf testified that one of the COs could run to the Control post for OC spray, the uncontested testimony of COs was that they cannot leave their partner alone on a range during an incident. So the evidence is that COs are on their own in the event of an assault from anywhere from 15 to 45 seconds;
• without OC spray, COs must revert to physical handling. This exposes the COs to longer fights/exchanges and increases the risk that COs will be injured in the exchanges. The evidence establishes that close body proximity to an inmate during physical handling opens COs to the risk of being stabbed by a weapon in the hands of an inmate or to exposure to blood borne pathogens; and
• the evidence from the CO job description, Dr. Gabor, J. McKay and COs was that the TRA can neither predict nor prevent a spontaneous assault by an inmate.

[102] I conclude, from the evidence presented to me, that the routine issuance of OC spray to COs on the Living Units could reduce the danger.

[103] Based on the jurisprudence of the Tribunal, as upheld by the Federal Court of Canada, a danger constitutes a normal condition of employment when this danger is one that remains after the employer has taken all necessary steps to eliminate, reduce or control the hazard, condition or activity.

[104] Since it has been established that the danger identified in this case could be reduced or controlled, the only possible conclusion to be drawn is that the danger facing the appellants does not constitute a normal condition of employment.

Decision

[105] For these reasons, I rescind the decision of HSO O’Byrne that a danger did not exist.

[106] I direct the employer to immediately take measures to ensure that the safety and health of the Correctional Officers employed on the Living Units is protected from the danger described above as per the direction appended to this decision.

Douglas Malanka

Appeals Officer

Appendix

Citation: B. Armstrong et al. v. Canada (Correctional Service), 2010 OHSTC 006

Case No: 2004-34

Direction to Correctional Service of Canada

Following an appeal brought under subsection 129(7) of the Canada Labour Code (the Code), Part II, I conducted an inquiry, pursuant to section 146.1, with respect to a decision that the danger did not exist. That decision was rendered verbally on July 26, 2004 and followed in writing on July 28, 2004 at the conclusion of the investigation into a refusal to work of 16 correctional officers that occurred at Kent Institution, British Columbia. The work place is operated by Correctional Service of Canada, an employer subject to the Code.

I concluded that a danger existed on July 26, 2004 for the refusing CO’s on the living unit that are exposed to spontaneous assault by inmates and I rescinded the health and safety officer’s decision that the danger did not exist.

Therefore, you are Hereby Directed, pursuant to paragraph 145.(2)(a) of the Code, to immediately take measures to protect the employees from the danger and to report to an HSO of the Vancouver District Office on those measures by April 30, 2010. Issued at Ottawa, this 29^th day of March, 2010.

Douglas Malanka

Appeals Officer

To: Correctional Service of Canada

Kent Institution

Agassiz, British Columbia