Tribunal supports work refusals by 37 officers after B.C. institution opts not to conduct special search of inmates for bladed tool
The Correctional Service of Canada has been directed to do more to protect its correctional officers to mitigate the danger brought on by the possibility of a missing cutting tool making its way into the possession of inmates.
On Oct. 30, 2014, a pair of thread snips — a tool with two flip-out blades about eight inches long when unfolded used to trim threads and strings from chairs and cushions — went missing from the upholstery shop at the Mountain Institution, a medium security incarceration facility in Agassiz, B.C. The tool was classified as a “restricted tool” by Corrections Canada (CSC), which meant they were tools “most likely to be used in an escape attempt or in any dangerous or illegal way” and use by inmates required intermittent supervision — as opposed to constant, direct supervision for “prohibited” tools. None of the six pairs of snips in the shop could be passed hand-to-hand by inmates and staff but rather had to be placed on a table and then picked up by the next person to avoid the risk of injury.
The upholstery shop was part of a compound of buildings separated from the rest of the facility by a fence. All inmates arriving at and leaving the compound were subject to a frisk and metal detector search.
The correctional officers on duty in the upholstery shop at the time were concerned as they felt there were opportunities for the snips to be passed out of the fenced compound and into the general inmate population, where they could be used as a weapon. Adding to their concerns was the fact that had been an attempted murder of an inmate by another inmate two weeks earlier with a sharpened butter knife. Such an incident wasn’t common at a medium security institution, so it was considered an “elevated” behavioural and security issue. There were also recent concerns related to possible violence against sex offenders by other inmates and six weapons had been seized in the past month in a facility where the average was nine per year.
CSC prepared a risk assessment, which found the snips were last accounted for about two hours before they were noticed to be missing and two inmates had left the upholstery shop since that time. In addition, one inmate had taken recycling from the shop to an adjacent building through an unlocked gate and the fence line behind the compound didn’t have video surveillance.
A modified routine was put in place at the facility, where inmates were subject to frisking and searching upon exiting their cells and one living unit at a time was allowed access to the kitchen. Once inmates from a unit were done eating, they were returned to their cells and locked in.
Later than evening, about seven hours after the snips were last accounted for, correctional officers performed non-routine frisk and cell searches on select inmates, including those who left the upholstery shop early. The searches didn’t turn up anything.
Not enough done to find potential weapons: Officers
The next morning, the upholstery shop and surrounding areas were searched thoroughly in case the snips had fallen out of sight into a small space or nook. Inmates from the shop were interviewed and none said they had used the snips, and intelligence gathered from the inmate community didn’t reveal any specific threats. Managers and union representatives met to develop plans to return to the normal routine at the facility, but this didn’t quell the concerns of many correctional officers. One officer invoked a refusal to work due to danger under the Canada Labour Code in the early afternoon of Oct. 31, and most of the officers on duty that afternoon followed suit soon after.
A total of 37 correctional officers refused to work due to the concern over the missing thread snips. As one officer’s statement said: “It is my belief that it is very possible that (the snips) made their way down to the compound via through the fencing and pass-offs from the inmates... Compile this with all the homemade weapons that have been found over the last week and half I believe that there is reasonable grounds to believe that there is a source of harm or risk to an employee that has been introduced to the inmate population.”
The refusing officers said that not everything was done to reduce the danger, as CSC had the ability to conduct a search under s. 53 of the Corrections and Conditional Release Act — a frisk or strip search of all inmates where there is a reasonable ground to believe that there is “a clear and substantial danger to human life or safety” because of contraband.
CSC reviewed the situation and found there was no indication of any specific harm being contemplated against a staff member and there was no evidence the snips made it through the metal detection and searches at the access points to the upholstery shop, so conducting a disruptive s. 53 search was unnecessary. A federal ministerial delegate than conducted an investigation and determined the missing thread snips constituted a danger under the code as they would constitute a serious threat to the life or health of a correctional officer if in the hands of an inmate who wanted to do harm. The delegate ordered CSC to protect its employees from the danger immediately.
CSC appealed the direction, arguing there was no elevated risk of danger beyond what would normally be expected in the course of a correctional officer’s job and therefore no reason to refuse work.
The Canada Occupational Health and Safety Tribunal noted that the code defined danger as “any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered.” When the thread snips went missing, circumstances that were out of the normal routine resulted — special searches were conducted, certain inmates interviewed and frisked, cells were searched, and special efforts were made to gather intelligence. In addition, the snips were classified as a restricted weapon that was “a particularly frightening instrument if it is in the hands of someone who intends to use it as a weapon,” the tribunal said.
The tribunal found that the condition created by the missing snips didn’t create an imminent threat, as if an inmate did in fact take them, it was unlikely he would use them in short order. However, a serious threat is not necessarily imminent, and the correctional officers who refused work didn’t argue that there was an imminent threat. Rather, the worry was that the snips were in the general population and could be used sometime in the future, said the tribunal.
While it was possible the snips were simply misplaced in the upholstery shop and weren’t in the possession of an inmate, it couldn’t be proven any more than the concern that they were out there. Since the code’s purpose is to prevent workplace accidents and injuries, the tribunal couldn’t rule out the possibility that the snips were taken and hidden for future use by an inmate or the possibility a correctional officer could be injured by them. As a result, the tribunal determined “a condition existed in the (officers’) workplace that constituted a danger to them, within the meaning of the code.”
The tribunal recognized that CSC took measures in response to the situation including a modified routine and special searches, but it still had a final option — the s. 53 search — that could have helped it find the missing snips. By refusing to conduct such a search, CSC didn’t take all necessary measures to eliminate or reduce the hazard in its workplace, said the tribunal in upholding the direction to reasonably protect its employees.
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