The Canadian Public Service Relations Board had ruled the Correctional Service of Canada (CSC) was within its rights to fire an employee for using excessive force restraining an inmate.
Kenny Roberts had been a correctional officer since 1987, most recently at Kingston Penitentiary in Kingston, Ont. In 1999 he had a serious illness which left him with impaired vision. Because of this condition, it was recommended he be placed in a position where he wouldn’t have any contact with inmates. It was agreed the night shift at the penitentiary hospital would minimize that possibility.
On the evening of Sept. 28, 2005, an inmate was found in his cell in a state of agitation. He had slashed his arm with a razor blade. The inmate also claimed to have swallowed razor blades. The supervisor on the shift calmed the inmate down and ordered him to be taken to the penitentiary hospital. He was handcuffed and escorted by the supervisor and two officers. Roberts was in the hospital at the time with another officer and a nurse. The inmate was placed in a chair and the nurse began pouring a liquid onto a towelette. When the inmate saw this, he asked if it was rubbing alcohol. He was told it wasn’t but when the nurse tried to apply the towellette, the inmate protested and began to struggle. Roberts, the supervisor and the nurse restrained his arms. Roberts placed his hand on the inmate’s nose and mouth and the supervisor told him things were under control as the inmate was still handcuffed and restrained in the chair so he should remove his hand from the inmate’s face. When Roberts did so, he pushed the inmate’s head up, which further agitated the inmate. He had to repeat the direction to Roberts.
The inmate calmed down but said “Is this how you treat people?” and reportedly called Roberts a “goof.” The supervisor saw Roberts move in his peripheral vision, heard a slapping noice and saw the inmate’s head snap back. He saw shocked looks on the officers’ faces after a brief silence. The supervisor told Roberts to leave the area to avoid an escalation of the situation.
It was decided the inmate needed to go to an outside hospital for stitches. When the inmate heard “hospital,” he thought they meant the prison hospital and protested because he knew Roberts worked there and he “didn’t want to get it again.”
After the inmate was taken away, the supervisor told Roberts he was concerned and the assault of an inmate in his presence created a difficult situation. Roberts got angry and denied he had done anything wrong. He told the supervisor his “blue shirt had gone to your head” and “that’s how we did things in the old days.” He refused to submit an observation report or put anything in writing because he felt the supervisor was “going to try to hang me.” After a heated conversation, the supervisor told Roberts to go home and could only return if he submitted an observation report.
The three officers present at the time of the incident all agreed with the supervisor that the inmate was under control. One officer testified he saw Roberts hit the inmate in the side of the face with his fist. The others didn’t see it as they weren’t looking directly at him but both claimed they heard a sound like a hand hitting a face. They also agreed they would be uncomfortable working with Roberts in the future because his behaviour showed a lack of restraint and professionalism. They felt he couldn’t be trusted in a tense situation, which was essential when working in a penitentiary.
Roberts was notified CSC was investigating the incident and he was told “disciplinary action may be pending.” When Roberts was interviewed as part of the investigation, he was disrespectful and unco-operative, at one point using profane language. He acted the same way at a second disciplinary meeting.
CSC found there was sufficient evidence from the reports of the supervisor and the officers present to determine Roberts did strike the inmate. It ruled this was excessive force that went beyond what was necessary to restrain the inmate. It also found his failure to file an observation report after the incident and his attitude and conduct with the supervisor was insubordinate. In addition, when Roberts returned to work from his illness he was supposed to avoid interaction with inmates as part of his accommodation requirements. However, he jumped right into the altercation even though there were other officers present who could have handled it. He had also become willingly involved in “confrontational situations” with inmates on two other occasions.
Because of the seriousness of Robert’s misconduct and the fact he showed no remorse or regret, CSC felt he had “irrevocably breached trust in the employment relationship.” He violated CSC’s instructions for accommodation of his medical condition and he “brought into disrepute the reputation of correctional officers, the Kingston Penitentiary and the CSC.” Roberts was fired on Jan. 26, 2006.
The board found the supervisor’s various statements and log of the incident were consistent with each other and that of the officers present. Though not all actually saw Roberts hit the inmate, their descriptions of the situation and what they saw or heard were enough to conclude it did happen. It found Roberts’ account to be inconsistent, first saying he “tipped” the inmate’s chin up and later “striking” it. His behaviour afterwards when talking to the supervisor were “more suggestive of someone on the defensive than that of an individual with a clear conscience about what he did,” the board said. The board concluded Roberts did strike the inmate.
The board agreed Roberts didn’t receive as much counselling as he should have about the risks and limitations after he returned to work from his illness, but found he should have been aware enough of his condition and the accommodations which required him to avoid this type of situation involving inmates.
The board also found the inmate was adequately under control in the chair. Other than verbal aggression, the main threat at that point was the possibility of the inmate spitting and hitting him was not an adequate way to avoid it.
“I believe that striking a person who is wounded, with hands cuffed behind his back, sitting as a patient in a treatment chair in a medical facility, offends a reasonable sence of what is appropriate, even in the extremes of a correctional setting,” the board said.
The board considered Roberts’ behaviour after the incident and during the investigation and disciplinary hearings and found it was difficult to be sure it couldn’t happen again. “I cannot be sure his behaviour was altogether an aberration nor that (his) attitudes about the treatment of inmates might not predispose him to inappropriate conduct in other stressful circumstances,” the board said. “I have formed a strong impression of an individual who can be disrespectful of authority and probably can be disrespectful of the inmate population with whom he interacts.”
The board found termination was an appropriate level of discipline for Roberts’ misconduct.
For more information see:
Roberts v. Canada (Deputy Head – Correctional Service)
, 2007 CarswellNat 699 (Can. Pub. Service Lab. Rel. Bd.).
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