The Code

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@Beebs_D, August 20, 2012

The Code of Silence

There is a joke that is told by the staff of correctional institutions from time to time.  It goes something like this:

Question: How many officers does it take to push an offender down the stairs?
Answer: None. He fell.  
John Jones, (When Loyalty Gets in the Way of Honesty)[21]

246        As the stories featured in this report show, the “code of silence” is a persistent, recurring factor in cases of excessive use of force.  It is essentially an unwritten social incentive for staff to conceal information that might have negative consequences for a co-worker.  As in policing, in the world of correctional services, where personal safety and security often depends on the support of other officers, the pressure to keep silent and even lie to protect colleagues can be prevailing and pernicious.  As one Quebec judge recently described it, prison guards sometimes display a “sclerotic solidarity ”[22] when faced with testifying against their peers.  

247        “The code” has been found to operate in institutions across the province, from small local jails to large detention centres.  In a November 2010 briefing note, the Correctional Investigation and Security Unit informed the Deputy Minister, Correctional Services that the code of silence was a significant factor affecting the timely completion of its investigations.

248        Some correctional staff told us the code of silence was a thing of the past or that it has declined in significance.  They said officers are no longer willing to jeopardize their own employment to protect their colleagues. One senior union official flatly denied that officers were reluctant to come forward or that there was a heightened level of loyalty leading to cover-ups.  Some Ministry officials we interviewed also disputed the presence of the code in today’s corrections community.

249        In contrast, many correctional officers freely admitted to us that the instinct to remain silent and “stay solid” with co-workers continues to be an integral part of corrections culture.  As one 30-year veteran officer put it:

It’s a tough thing, because in any area where you’re depending on somebody for your protection, you’re going to protect them too.  And sometimes if people do things that aren’t maybe 100%, you’re still going to protect them because you need them as protection.  And… you don’t want to be a rat…

250        A superintendent of a large institution also told us the code continues as a “purposeful, systemic way in which correctional officers protect other correctional officers.”  He said he is aware of cases where threats of death and physical violence have been made against those who told the truth in the face of the code:

We have some seriously sociopathic individuals wearing blue right now who have no problem whatsoever in paying people back for breaking the blue code.

251        Several of the correctional staff we talked to, including senior officials at institutions, acknowledged that the code of silence was not limited to correctional officers, but also influences managers.  This is borne out by our investigation, which revealed various ways that correctional managers reinforce the code of silence.  Some might enable collusion to go undetected by accepting poorly drafted occurrence reports or failing to investigate an incident thoroughly.  In the case of inmate Albert, senior managers neglected to review the damning photographs of his injuries, and in inmate George’s case, management accepted occurrence reports at face value, although they did not even meet minimum standards.  Some might give staff opportunities to collude, as in inmate Brian’s case, where the operational manager let those involved prepare their occurrence reports together.  Some might even help staff get their stories straight, as in inmate Frank’s case, when an assistant deputy superintendent allowed an officer to view video of the incident before giving his evidence.

252        At times, managers might also actively and deliberately participate in a cover-up, as occurred in inmate Edward’s case, where the acting operational manager and other staff concealed the incident and attempted to persuade Edward not to complain.  As well, in Frank’s case, a group of operational managers tried to hide what happened, and in Helen’s, the involved operational manager obscured the facts out of fear of retaliation by an influential correctional officer.

253        Historically, the code of silence has been a well-established reality of life in the correctional system.  As one judge noted in 2004, in finding three Toronto East Detention Centre officers guilty of assaulting an inmate:

All correctional officers referred to their fear of being labelled a “rat,” or breaking the “code of silence” as reprisals could ensue – even being forced out of the institution.  As a result, occurrence reports are often not filed, and guards who break the rules are not reported to management…. [R]ules are broken daily, which is necessary in order to get the job done.  This aspect of the TEDC culture, it appears, condones or even encourages certain individuals in taking on disciplinary functions in breach of the rules, thereby increasing the chances that incidents such as this one will arise.[23]

254        Decisions of the Grievance Settlement Board, which adjudicates disputes between the union representing correctional officers and the Ministry, have often cited the code of silence as an issue. They refer to coworkers threatening others to “stay solid,” and the constant fear of being labeled a “rat.”  As one board member noted in a decision:

The evidence was overwhelming that the code of silence is a powerful and pervasive force throughout many facilities within the Ministry of Corrections… when a correctional officer engages in serious misconduct at work – for example, an assault on a restrained and compliant inmate –  …[the code of silence forces] correctional officers to look the other way and turn a blind eye to what happened in a truly misguided attempt to protect correctional officers who have abused their position of power and trust.  Given their responsibilities to protect inmates under their custody and control as correctional officers, it is simply wrong.  But the code of silence does even more harm than permit correctional officers to act wrongfully without consequence.  It punishes the wrong people.  It punishes those who come forward to tell the truth.[24]

Truth and Consequences

255        Correctional officers are compelled to co-operate with the Correctional Investigation and Security Unit under s. 22 of the Ministry of Corrections Act.  The Assistant Deputy Minister, Institutional Services told us it is the job of correctional officers to tell the truth, not in an addendum after an allegation emerges and they are facing potential discipline, but from the outset.  The Ministry’s policy on staff conduct and discipline cautions staff against obstructing an investigation or withholding, destroying, concealing or refusing to furnish information required by an inspector under the Act.  The policy also warns against falsification of records, harassment and threatening behaviour of others, including co-workers, and failing to report witnessed acts or suspicion of assault, degrading treatment, neglect or any form of abuse.

256        However, one cannot underestimate the power of the code of silence and the consequences for those who break it.  In the corrections world, whistleblowers are known as “rats.”  They are treated as outcasts and pariahs.  Unless staff have assurance that the Ministry has their backs and are confident that their interests will be protected, their loyalties will be divided.  As one superintendent acknowledged to us, the Ministry is not doing a good job of protecting those who tell the truth.

257        There have been suggestions in a number of Grievance Settlement Board cases that the Ministry should address the problem of the code of silence more directly and effectively.  As a vice-chair of the board wrote in one decision:

…the employer may well need to develop a more comprehensive and rational strategy in respect of its treatment of the code.  It cannot purport to occupy the   high moral ground… painting the code… as an obstacle to justice and integrity in Correctional Services and then be seen… to be somewhat indifferent to its operation.[25]

258        In another such decision, a vice-chair wrote that it would take a concerted and sustained effort by Ministry management and the union to address the code of silence:

Management has to consider its responsibilities here... Management may have to reconsider whether its approach to the code of silence is effective. In this case, there were a number of correctional officers who were suspended, in part, for writing misleading reports and lying during the investigation, i.e., for following the code of silence.  After serving their suspensions, however, those officers returned to their normal work lives and life… The same is certainly not true for the three individuals who came forward.  The repercussions for them have not ended.[26]

259        The fallout from breaching the code can be devastating for those who speak the truth, as noted in another Grievance Settlement Board case:

They will likely be labelled a rat and generally ostracized.  They will often be harassed in various ways, inside and outside of their institution.  They may find that the only way to address the stress associated with being labelled a rat is to change institutions or give up correctional duties.[27]

260        The cases of Frank and Helen demonstrate that correctional staff who break the code are shunned, threatened, and risk personal harm for “ratting” on their colleagues.  One operational manager at a northern jail told us he has written accurate reports about incidents involving excessive use of force, only to find scratches on his car and nasty notes written on his locker.

261        Another correctional officer told us she received threatening phone calls at her home after reporting that she had witnessed excessive use of force against an inmate.  She said even her manager chastised her for “causing trouble” when she first reported the incident to him.
 
 

Life as a “Rat” – Correctional Officer Ian

262        What happened to Correctional Officer Ian clearly illustrates the dilemma faced by officers who break the code of silence.  Ian worked as a correctional officer for about 25 years.  He worked at several institutions, most recently at the Toronto West Detention Centre.  We first met Ian in November 2011 in the course of our interviews with correctional officers about excessive use of force within the correctional system.  Then, Ian talked about the stigma associated with being a “rat,” but said he was confident that he would accurately report on any cases of excessive use of force he witnessed.  Ian’s resolve was put to the test soon after, on December 6, 2011, when he witnessed a correctional officer slap an inmate without reasonable cause during a weapons search.  Initially, none of the four officers present, including Ian, mentioned the slap in their occurrence reports.  However, after grappling with his conscience, Ian finally approached the superintendent.  Eight days after the incident, he filed an addendum report mentioning the slap.  The case was referred to the Correctional Investigation and Security Unit for investigation.

263        In its report on the incident, the Unit noted that that all four involved officers had shared their initial reports with one another, and that it was common for them to submit reports to their union representative before filing them with management.  The situation was exacerbated by the conduct of an operational manager who failed to question any of the involved officers about the inmate’s allegation of excessive force.  This manager also permitted Ian, who was the union local’s chief steward, to act as the union representative for the three other officers.

264        Ian admitted to the Unit that the group had colluded to ensure they “were all on the same page and … could all be trusted.”  He also testified that after coming clean about what happened, he earned derision from his colleagues, and the accusation from one that “you sold your soul to the devil.”  The other three officers continued to deny that the inmate had been slapped.  The Ministry suspended and then fired them, including the local union president.  Ian, the lone correctional officer who had told the truth, received a letter of reprimand.   He also suffered more severe repercussions – but in his case, the punishment came from co-workers.

265        Ian contacted our Office after months of harassment and intimidation at the hands of his colleagues.  In his letter of complaint he bluntly observed:

I have broken the “Code of Silence” that exists amongst correctional officers and am now paying the price, as it were.  I am now considered a “Rat”…

 
266        Ian told us that after he witnessed the fateful slap, he tried unsuccessfully to convince his coworkers to tell the truth. When he finally took the leap and gave an honest account of what happened, he became an instant outcast.  At first, he was pressured to file a grievance alleging he had been coerced into co-operating with management.  When he refused, things got worse.  Fellow officers excluded him from conversations, directed glares and laughter at him and turned their backs when he entered rooms.  He was told to “get out of here” during breaks and forced to sit alone.  Notes started appearing in conspicuous places around the institution: A sheet with “GUARDS 1st” written on it pinned to a bulletin board, an official poster defaced with “GUARDS FIRST,” and another with “THE DEVIL YOU DON’T KNOW.”  While the perpetrators remained anonymous and he was not specifically named, the message was clear to Ian.  At one point, two officers who had initially supported him told Ian he could no longer come by their office.  Someone had called and warned them they were “drawing heat for harbouring a rat.”

267        Ian kept management apprised of what was happening.  He also filed a workplace discrimination and harassment policy complaint.  Senior managers at the institution told us they believed Ian’s version of events.  They had no doubt that he was being ostracized and tormented for breaking the code of silence, but there was not much they could do.  It was difficult to identify the culprits and there was insufficient evidence to justify disciplining others. Much of it amounted to “he said/she said,” and the harassment was often indirect, subtle and anonymous.  There was also the matter of the independent investigation into his workplace discrimination and harassment policy complaint, which is still pending.

268        For now, telling the truth has effectively cost Ian a job he was once proud to perform and put his career on hold. After months of enduring social exclusion and disdain, he finally left the institution on paid administrative leave.  After our Office alerted senior Ministry officials to his plight, the Ministry ramped up its attempts to find him an appropriate alternative placement.  Senior management at the institution acknowledged that Ian’s reputation for breaking the code would likely follow him wherever he goes within the correctional system.  For many months, Ian sat at home, broken-hearted, and paid to do nothing, a victim of a floridly dysfunctional social system in which honesty can come at an exorbitant price.  Recently, Ian was placed in an administrative position with another Ministry.

269        The Assistant Deputy Minister, Institutional Services told us the Ministry offers assistance to officers who express fear of reprisal for providing accurate information about cases of excessive use of force.  It has transferred some to other institutions, but he noted this is sometimes “difficult, as they’re going to work with other correctional officers” in an environment where news about breaking the code travels quickly and broadly.  As well, some officers might be reluctant to relocate.  He said the Ministry has also offered to transfer staff to other ministries and helped them via the employee assistance program – and even given them protection in their homes.

270        Since January 2010, the Ministry has received complaints from four correctional officers, including Officer Ian, who say they have been threatened for breaking the code of silence in cases of inmate abuse.  Three were involved in the incident with inmate Helen.  They have remained on staff at Sarnia Jail, but the Ministry has instructed them to address any concerns about retaliation directly to the superintendent, and has provided them with a special number to call local police.  The Ministry has also offered them help through the Ontario Public Service Employee Assistance Program.  In the case of one officer, the Ontario Provincial Police also did a threat assessment.

 

Cracking the Code of Silence

271        Some of those we interviewed said the code of silence was a taboo subject for the Ministry.  Some officials downplayed the significance of the code or refused to acknowledge its existence. We were told that, at times, Ministry officials have even suggested that the Correctional Investigation and Security Unit remove or reword references to the code of silence in its reports.  While some may debate the existence or depth of the code of silence within Ontario’s correctional institutions, the evidence obtained in my investigation indicates it is still very much alive and firmly entrenched in corrections culture.  It is also clear that the code of silence plays a pivotal role in cases where excessive use of force occurs.  The code promotes inmate abuse, as it allows correctional staff to take out frustrations against those in their custody, confident that their colleagues will support them and hide their wrongdoing.  The code also penalizes honest employees, who risk their own wellbeing if they fail to abide by it.

272        As demonstrated in inmate Helen’s case, the Corrections Investigation and Security Unit has the authority to investigate allegations of witness intimidation.  The Ministry has also recently shown a willingness to take decisive action when such allegations are substantiated.  However, the situation is murkier when retaliation for breach of the code of silence consists of the day-to-day accumulation of workplace snubs, stares, whispered remarks and social slights.  Then there are the more insidious cases in which correctional staff delay coming to the aid of those who have broken the code.

273        The Occupational Health and Safety Act requires that employers take steps to prevent harassment in the workplace, and the Ontario government’s Workplace Discrimination and Harassment Prevention Policy provides for investigation of bullying and other inappropriate employee conduct.  The Ministry of Government Services oversees administration of this policy.  Correctional staff, as in Officer Ian’s case, can lodge a complaint under this policy to deal with peer intimidation.  Unfortunately, this option is not of much help when harassment is anonymous or subtle.    

274        The Assistant Deputy Minister, Institutional Services acknowledged to us that the code of silence exists.  He said training plays an important role in making officers aware of their responsibilities and accountability, the consequences of the code, and the available help for victims of reprisal.  He told us that since our investigation began, he has personally issued memos to correctional staff, toured facilities and given speeches emphasizing zero tolerance of both excessive use of force and reprisals against those who break the code of silence.  He said the Ministry continues to address the code through disciplinary action against officers who have concealed information, and by installing cameras to decrease opportunities for inappropriate conduct.  

275        The Ministry also pointed to other measures it is implementing to address peer intimidation.  Its Statement of Ethical Principles includes admonitions against threatening, harassing, discriminating, humiliating, and degrading treatment of inmates and co-workers, and stresses the need to protect those who might face reprisal for reporting inappropriate behaviour.  A new Code of Conduct was being prepared at the time this report was written.  The draft version we reviewed addressed a range of staff behaviour, from failing to attend work regularly and participating in illegal strikes, to misusing information technology resources and associating with known criminals, to committing crimes, including assault.  It includes prohibitions against discriminating, harassing, threatening or bullying others, and encourages accurate and immediate reporting of inappropriate incidents.  However, neither the Statement of Ethical Principles nor the draft Code of Conduct refers specifically to the code of silence.

276        The Ministry has also issued a Threats Against Correctional Services Staff and Other Personnel policy, which includes direction on reporting, notifying the police and other measures to address threats.  On July 9, 2012, the Director, Management and Operational Support Branch issued a memorandum to regional directors referring to the policy, outlining clear expectations that staff must follow for all incidents of intimidation and/or threats, and directing that the memorandum be shared with correctional staff.  On September 19, 2012, the Assistant Deputy Minister, Institutional Services issued an all-staff memorandum emphasizing that every alleged act of workplace violence “by an inmate, a member of the public, a worker or other person” must be reported to the manager or supervisor, an immediate investigation of the incident conducted, and the police contacted.  The memorandum included a link to the policy on threats.  However, while the policy clearly applies to incidents involving assaults, threats or intimidation by inmates against staff, there is no mention of threats from peers.  In addition, the supporting memoranda and guidelines refer only to threats by inmates and former inmates against staff.  There is no mention of the code of silence.  

277        The Ministry has its own workplace violence prevention program, which addresses violence in the workplace through formalized risk assessment. However, once again, the assessment tool makes no explicit reference to harassment and other measures staff employ to enforce the code of silence.

278        At present, the impulse to cover up unreasonable force appears virtually reflexive amongst many correctional staff.  Until the Ministry makes a concerted effort to tackle the code of silence head-on, it will likely continue to flourish and compromise the safety and security of Ontario’s inmates and correctional employees.  While the Ministry has recently made some efforts in this direction, more consistent, direct and forceful action must be taken in order to crack the code.  This is not an isolated issue that should be left to local institutions to address.  The code is widespread, intractable and insidious.  The goal of eliminating it from Ontario’s correctional facilities must be raised to the highest level of the Ministry’s corporate conscience, and pursued aggressively.

279        For a start, clear written direction, through memos, policies and other means, must be given to staff that the code of silence – also referred to by some staff as “staying solid” – will not be tolerated.  It should be expressly stated that staff who fail to disclose information about inmate assaults, or who engage in attempts to retaliate against those who break the code, face discipline up to and including dismissal.  This direction must come from the top to signal the severity of the problem and the intensity of the corporate will to eradicate it.

280        The Ministry should also immediately institute a practice requiring correctional institutions to notify senior corporate officials when allegations relating to retaliation for breaching the code of silence are raised.  Local institutions should not be left to address these complaints on their own.  The Ministry should ensure that these cases are escalated, thoroughly reviewed, and that third-party investigation under the Workplace Discrimination and Harassment Prevention Policy or other means takes place expeditiously.  As the Correctional Investigation and Security Unit’s investigations have shown, formal independent investigation can often ferret out the truth in ways that local review by institutional management simply cannot.

281        The Ministry should also put additional effort into helping officers who face retaliation for breaking the code of silence.  Senior Ministry officials at the corporate level must have primary responsibility for addressing this issue.  It should not be left to local administrators to protect and find alternative employment for affected staff members.  Whenever possible, the Ministry’s focus should be on permanently removing those who retaliate against others from the institutional system, rather than on transferring their victims out.  At the same time, I recognize that for security reasons, there may be no option but to remove victims from poisoned work environments.  Accordingly, the Ministry should proactively seek arrangements, within its organization as well as within other provincial bodies, which would allow affected correctional officers realistic opportunities to find suitable alternative employment.  Those subject to workplace harassment for breaking the code of silence should not be left to languish on indefinite leave.

282        There is considerable worth in publicizing lessons learned from real-life events.  The Ministry should exercise the initiative to provide staff with examples of cases involving the code of silence and emphasize the consequences for this conduct.  Although information about staff discipline for abiding by or enforcing the code of silence might spread via the grapevine, there is value in the Ministry formally putting its staff on notice.  The Ministry does not necessarily have to identify the offending employees by name, but the conduct should be named and shamed to underscore the goal of zero tolerance.

283        I acknowledge that the Ministry does not have an easy task ahead of it in tackling the code of silence.  To effect cultural change sometimes requires drastic measures.  The correctional climate has evolved over a considerable amount of time, and has been left to fester.     


 

Moving the Mountain – Changing Correctional Culture

284        Ministry initiatives to tackle excessive use of force – and the code of silence that often obscures it – will only succeed to the extent that correctional employees are receptive to change.  Most correctional staff have been in the system for decades.  Their customs and practices are likely hardwired, and many might prove resistant to the Ministry’s attempts to alter their course. While it might be easier to train new recruits, untouched by institutional culture, to comply with Ministry policy and procedure relating to the proper application of force, the Ministry has not hired any correctional officers from among the general public since 2010.

285        We were told by some correctional staff that, as a result of a lack of rigour in the Ministry’s past recruitment practices, unsuitable people have sometimes been hired.  Correctional officers have been found to have criminal affiliations, or guilty of smuggling contraband into institutions.  One superintendent told us:

We have staff members that are criminals.  They are not only criminals in regard    to contraband lugging.  They are criminal in regard to providing consequences to anybody who may break the code [of silence].

286        We heard of one extreme case from July 2009, in which a correctional officer at the North Bay Jail arranged to have his co-workers assault an inmate who was accused of sexually assaulting one of the officer’s relatives.  The Correctional Investigation and Security Unit, partly on the evidence of text messages arranging for the beating, substantiated the conspiracy.  Five staff, including the jail’s deputy superintendent, were fired.

287        The Ministry has developed a recruitment modernization program focused on attracting a higher calibre of correctional officer through the use of enhanced recruitment, screening and selection tools such as extensive background checks, psychological and fitness testing.  However, this program is not yet in full effect.

288        In 2010, to address significant staff shortages, 80 people were conditionally hired – without going through the standard recruitment and testing process. Once security and background testing was done, four were identified as unsuitable, one as a result of his relationship with a biker gang.

289        In 2012, 80 regular correctional officers and 72 officers on contract who had worked in the youth services sector were transferred from the Ministry of Children and Youth Services, but they did not go through the enhanced hiring process.  They received “conversion” training lasting just over two weeks.

290        The Ministry told us it would begin recruiting new candidates for correctional officer positions in March 2013, and it is hoped that the training for these recruits will start in the fall.  It posted vacancies for 80 contract positions for the Toronto South Detention Centre in March 2013.  It expects to hire and train 100 recruits between October 2013 and March 2014; 200 in 2015, and continue to increase staff in future.  The Ministry told us these increases will allow it to reduce overtime costs and lockdowns, and institute better programming for inmates, all of which it hopes will lead to a decrease in tension within institutions and situations requiring the use of force.

291        The injection of new blood into the correctional system will provide the Ministry with an opportunity to reinforce proper defensive tactics, as well as its revised policies and procedures.  Still, the Ministry should also ensure that any orientation program includes instruction about specific cases involving excessive use of force, as well as the code of silence.  Cautionary tales about actual incidents can be powerful learning tools.  Recruits should be provided with examples of the consequences – including discipline, dismissal and criminal prosecution – that have accompanied findings of excessive use of force and cover-ups.  They should also be instructed on what to do if they are harassed or pressured by co-workers to conform to the code of silence.

Group Preparation and Sharing of Reports

292        In situations involving the use of force, the reports prepared by involved staff and witnesses provide necessary evidence to assess whether or not the force was reasonable or excessive.  However, the evidentiary value of these reports has often been compromised because of staff consulting with one another.  For instance, after inmate Brian was injured, two correctional officers wrote their reports together while an operational manager looked on.  In inmate Frank’s case, three operational managers discussed how they would report the incident.  And the officer who assaulted inmate Helen shared his report with others in an attempt to influence their evidence.  Reports prepared in this manner are clearly unreliable.  Even in less contentious cases, there is a significant risk that group preparation of reports will reflect a collective consensus, rather than an independent recall of events.

 

Separation and Silence

293        In response to concerns identified by my Office and the Correctional Investigation and Security Unit about the quality of institutional reports, the Ministry issued a new report writing policy in March 2012, along with writing tips and a guideline.  It also instituted refresher training in report writing in spring 2012 for all correctional officers.  As of January 2013, more than 90% of correctional officers had been trained on the standards.

294        The Ministry’s policy does not expressly prohibit staff from writing reports in groups.  However, the new training materials emphasize that officers should write their own reports and avoid preparing them together.  Under the heading “Write your own report,” one reference guide states:

• The Occurrence Report is a comprehensive statement by YOU clearly describing YOUR observations and involvement in responding to an issue/incident.

• Write your own Occurrence Report based upon what YOU saw, heard, smelled, touched, tasted; what you witnessed or observed relative to the situation; what you did and what you witnessed others doing.

• When involved in a situation with other officers, do not purposefully collaborate with these staff members in order to produce identical reports. Write your own report.

• If an Occurrence Report is used in court or at an inquiry, your credibility and the credibility of the report will be quickly destroyed if an investigator/lawyer can establish that YOU did not really observe or witness the facts that you documented in your Occurrence Report.[28]

295        Despite the Ministry’s recent efforts to improve report-writing practices, my Office’s investigators were told that group preparation of reports, as well as consultation about their content, was still occurring.   

296        One correctional officer was very open about this practice.  He told us that officers routinely discuss incidents of use of force before writing reports to ensure “we’re on the same page,” and to get their facts straight.  A security manager at one institution said he has discovered staff copying each other’s reports, even cutting and pasting sections using a computer.  He has gone so far as to count the words when reports appear identical, and to question staff about this suspicious consistency.  A Correctional Investigation and Security Unit inspector we interviewed said he has seen several cases where the occurrence reports read like they came from a template – the only differences between them were the names of the officers.

297        In his June 20, 2012 report, the Chief of Oversight and Investigations recommended that the Ministry develop a policy to separate staff involved in incidents of use of force, where operationally feasible, until they have completed their occurrence reports.  At smaller institutions, where segregation may not be practical, he said staff should be under strict orders not to engage in any communication about an incident until the occurrence reports, the local investigations report process, and any subsequent investigation are completed.  The Ministry committed to start implementing these recommendations in spring 2013.  

298        Segregation of staff involved in an incident until an investigation has concluded is consistent with the approach taken in situations where people have been seriously injured or killed in interactions with police.  In Ontario, regulations under the Police Services Act provide that police officers involved in such incidents must be segregated and cannot communicate directly or indirectly with any other officer involved until the Special Investigations Unit has completed its interviews.  These requirements reduce opportunities for witness accounts to be influenced – consciously or unconsciously – through sharing of information.  They make similar sense in the correctional context, and I am pleased to see the Ministry is moving in this direction.  I will closely monitor the Ministry’s commitment to implement this change in procedure.

The Write Stuff

299        In their defence, some officers explained to us that since they tend to all write reports in the same staff room, it is virtually impossible to avoid contact with one another.  They also told us they don’t have enough time or access to computers to enable each of them to write the detailed, individual reports now expected by the Ministry.  While Ministry policy has always directed that staff provide full accounts of incidents of use of force, it only recently began using firmer sanctions to enforce reporting requirements.

300        In fairness to the staff who are responsible for filling out the reports, the Ministry should review the resources available to them in order to ensure they have access to technology as well as the time necessary to complete them to the required standard.

Share and Share Alike

301        While segregation and prohibiting the sharing of evidence are important precautions, their effectiveness can be undermined through the involvement of union representatives.  Correctional Officer Ian testified that staff at the Toronto West Detention Centre regularly gave their reports to their union representatives before submitting them to management.  He was also allowed to serve as the union representative for three fellow officers while they were questioned by a manager about an incident in which he too was involved.  In inmate Albert’s case, the Correctional Investigation and Security Unit observed that the union representative disclosed occurrence reports written by other union members to witnesses before they were interviewed, potentially tainting their evidence and interfering in the investigation.

302        The Ministry has recently taken some measures to restrict access to institutional reports.  On January 12, 2012, the Assistant Deputy Minister, Institutional Services issued a memorandum to all superintendents emphasizing that occurrence and offender incident reports are the property of the Ministry and are not to be copied for personal use, duplicated for personal retention or forwarded to any person without the written consent of the superintendent.  Superintendents were also directed to ensure that all staff members are aware of these requirements and that they are included in institutional standing orders.  On October 15, 2012, the Assistant Deputy Minister, Operational Support issued further instructions to regional directors and superintendents about securing and storing occurrence reports.  However, there is still potential for union representatives to influence the preparation of reports, as well as the investigation process, through deliberate or inadvertent disclosure of information.

303        When staff members consult with union representatives about their reports before they are finalized or formally submitted, it creates the potential for a union representative to suggest changes or otherwise alter the report.  The Ontario Court of Appeal recently considered the impact of police officers consulting with lawyers in Special Investigations Unit cases.[29]  The Court emphasized that it is vitally important to the reliability and integrity of an officer’s evidence that notes record only their own independent recollection.  It found that the involvement of lawyers in the note preparation process had the potential to influence how police officers write their accounts, and granted a declaration that police officers involved in a Special Investigations Unit case do not enjoy the right to have a lawyer vet their notes or assist in their preparation.  The same logic applies to the correctional system and cases of use of force.  The Ministry should expressly prohibit staff from discussing the content of their reports with anyone, including union or legal representatives, while they are in the process of preparing them.

304        I also raised concern in both of my investigative reports relating to the Special Investigations Unit – Oversight Unseen (2008) and Oversight Undermined (2011)[30]) – about lawyers representing multiple police officers involved in Special Investigations Unit cases.  Joint retainers in these circumstances circumvent the regulatory segregation requirements and communication prohibitions under the Police Services Act, since lawyers are not allowed to withhold information from their clients.  

305        In November 2012, the Law Society of Upper Canada issued a notice to the legal profession strongly discouraging the practice of joint retainers of police officers in these situations, and observing: “It is difficult to see how segregated police officers can properly be jointly represented.”

306        While correctional officers are entitled to seek assistance from their union, when they are involved in investigations of the use of force, this right should be balanced with the need to protect the integrity of the investigative process and reduce the risk of contamination of evidence.

307        Discussion and sharing of occurrence and other reports with union representatives in such cases should only be allowed in limited circumstances in which the reports have been submitted to and approved by management, and with the express approval of institution superintendents.  In such circumstances, union representatives should undertake in writing not to disclose to others any information obtained through discussions with correctional officers or as a result of viewing their reports.

308        In addition, the Ministry should ensure that no union representative who has been involved in an incident is consulted or acts on behalf of any other staff member involved in the same incident.

309        Finally, to reduce the risk of information and reports being indirectly shared through a common union representative, joint representation of staff during investigations of incidents of use of force should be prohibited.

Intimidation Tactics

310        It is not uncommon for the very officers who used force against an inmate to be present when the inmate is questioned, examined by health care staff, photographed or asked for a statement about what happened.  This practice can provide opportunities, as in inmate Edward’s case, for staff to coerce inmates into making “jailhouse” deals; to forgo complaining about abuse in exchange for some other consideration.  It can also have a chilling effect on inmates, who fear repercussions if they speak out against correctional staff.

311        In the case of inmate Brian, the Correctional Investigation and Security Unit noted that an involved officer had “unnecessary and ill-advised” contact with Brian after force was used on him.  He was present while the nurse assessed Brian’s injuries, alone with Brian twice, and supervised him when he changed clothes.  This officer was also there while photographs were taken of Brian’s injuries and when an operational manager questioned Brian.  He was present when Brian wrote “I fell” on the accident and injury form.  Brian later admitted he was intimidated by the officer’s presence, and that he initially lied about what happened out of fear of reprisal.  He told our investigators:

I was scared and didn’t want to say “I got beat up.” I was worried about the outcome. … They were there.  I was in front of the person and told to write a statement.  The people who beat me up were in front of me.  I was obviously afraid of being beat up again.

312        We also found cases where the section for the inmate’s statement on the accident and injury form had been left blank.  In inmate Albert’s case, the form was prepared by an involved officer, and simply stated that Albert was not mentally capable at the time of making a statement.  Such reports are far more persuasive and credible if prepared by someone who does not have a personal stake in how the event is recorded.

313        Typically, officers involved in incidents of use of force are also on hand when health care personnel fill out their sections of the accident and injury form.  This can result in subtle and not-so-subtle pressure on health care staff as they complete their observations.  Health care workers depend on correctional staff for their personal safety.  We were told by several nurses that if correctional officers do not believe they are “solid” or “have their backs,” they sometimes delay opening doors or providing escorts for them.  We heard that correctional officers sometimes leave health care workers unprotected, walking away instead of standing beside them while they dispense medication to inmates.

314        One Ministry official we spoke to noted that since statements on the accident and injury forms involve medical issues, correctional officers should not have access to this form after it is completed.  Health care officials should deliver the form directly to the manager responsible for gathering the use of force package.

315        At the same time, some correctional officers and nursing staff we interviewed denied that officers would ever hold a grudge against nurses for writing truthful observations.  Senior officials from institutions and the Ministry also told us they had never considered the possibility of correctional staff taking retaliatory action against nurses after seeing statements in accident and injury reports.

316        In any event, once the involved correctional officers initiate the accident and injury form, there is no operational reason for them to have further access to it or to the health care observations.  Out of an abundance of caution, the Ministry should ensure that involved officers are not present while health care workers complete the forms and that they do not have access to the completed forms containing health care assessments.

A Picture is Worth a Thousand Words

Photographing Inmate Injuries

317        Photographs of inmate injuries provide essential evidence for determining whether or not unjustified force has been used on an inmate.  In the case of inmate Albert, pictures of his swollen and bloody face stood out in striking contrast to the accounts of the incident given by correctional staff.  This compelling evidence helped Correctional Investigation and Security Unit inspectors conclude that Albert had been the victim of excessive force.

318        For many years, the Ministry has had a policy requiring that photographs be taken of inmates after incidents of use of force.  It has also directed that additional photographs be taken within 24-48 hours, given that some injuries such as swelling, welts, scars, and bruising become more apparent over time.

319        While this policy is good in theory, historically, our Office has found that photographing requirements are rarely observed.  The Correctional Investigation and Security Unit has also identified several cases where images of inmate injuries were not obtained as required.  In the case of inmate Albert, the Unit found complete photographs were not initially taken after the incident, nor were any follow-up photos taken of Albert’s extensive injuries.  Similarly, no follow-up pictures were taken of inmate Brian’s injuries, and it took officials 21 days to take follow-up photographs of inmate George’s injuries, by which point they were well on their way to healing.

320        In early 2010, our Office raised concerns with the Ministry about an increasing number of circumstances in which correctional staff failed to fully comply with the policy on photographing inmate injuries.  In response, the Ministry issued a memorandum in May 2010 to all superintendents, reminding them of the policy requirements.  Despite this, we still encountered a large number of contraventions.

321        On July 27, 2011, the Ministry sent out a memorandum to all institutions about the quality of photos taken of inmate injuries.  It directed that an operational manager be designated at each facility to monitor the quality of digital images.  The Ministry also conducted a survey to assess the quality of photos produced in institutions across the province.  After evaluating the results of the survey, on August 18, 2011, the Ministry issued another memorandum, setting out standards for digitally recording images of inmate injuries.  In November 2011, the Ministry issued a separate Digital Images of Inmate Injuries policy, reinforcing the requirements for recording injuries and requiring that all images of inmate injuries are to be digitally recorded using standardized equipment.   

322        Although the Ministry has taken positive steps to encourage compliance with this policy, we found that problems persist.


 

Out-of-Focus and Unlabelled Images

323        The Ministry now requires that a disc of colour photos accompany all use of force packages.  However, we continued to find pictures of inmate injuries that were of poor quality, or captured only in black and white, resulting in unclear and virtually useless images with little evidentiary value.

324        We have also found unlabelled images of various body parts, making it impossible to verify to whom they belonged.  In its revised policy, the Ministry has attempted to address this by prescribing labelling requirements for all images.  We spoke to one institution that is developing local guidelines for labelling.  However, we continue to see cases where appropriate identification of inmate images is a problem.  

325        We have also been told that some correctional staff have difficulty with the new photography equipment and are not familiar with all its functions.

326        The Ministry should ensure that all institutions have fully functioning technology capable of satisfying the requirements for digital imaging of inmate injuries, and that they have trained correctional staff on its proper use and the policy requirements.
 

Improper Staging of Photos

327        An additional area of concern is the practice of cleaning all blood away and having inmates change into clean clothes before pictures are taken.  While sometimes cleansing injured areas can help ensure a clear view of injuries, some officials we interviewed told us such conduct is more likely an attempt to minimize the visual impact of wounds.  Ideally, if it is necessary to clean an area to get a better view of an inmate’s injuries, photographs should be taken both before and after.  In addition, any clothing and any physical areas of the institution damaged or soiled as a result of an incident of use of force should be photographed to ensure a more accurate record.

Manipulation of Evidence

328        To guard against potential intimidation of inmates, staff involved in using force on an inmate should not be present when photographs of the inmate’s injuries are taken.  Another reason for this prohibition is that close examination of the inmate’s physical injuries may influence correctional staff’s recollection of events, so that they direct their statements to explaining away the injuries rather than providing an independent account of the incident.

329        In some cases, involved staff are not only present while photographs are taken, but are the ones wielding the camera.  The operational manager who participated in injuring inmate Frank also took the photos of his injuries.  Conveniently, he neglected to capture images of Frank’s legs and ankles, although he had personally stood on Frank’s ankles and stomped on Frank’s legs.  He justified his failure to take a complete set of images by saying “there was no visible injuries on him, he wasn’t limping.”  At the time of writing this report, this operational manager was on suspension and facing a criminal charge of assault.

330        Staff who are involved in an incident of use of force have an inherent conflict of interest.  They have a natural incentive to downplay inmate injuries and should have no role in photographing them.

Out of the Picture

331        Ministry policy also requires that photographs be taken of any injuries incurred by staff members as a result of interaction with inmates.  It is common in cases where excessive use of force is alleged, for correctional staff to say they acted in self-defence.  We found cases in which officers said they were attacked by inmates and suffered injury, but no photographs of their injuries were taken.  For instance, a correctional officer said inmate Albert struck him in the face with a closed fist and injured his lip – but this officer never saw health care staff and no images were taken of the alleged injuries.    

332        There is also an inconsistent practice relating to storage of images of staff injuries relating to incidents of use of force.  Some photos are kept with the use of force files; others are not.  Given the relevance of staff injuries in such cases, the Ministry should reinforce the requirement for photographing staff injuries, and ensure copies of such photos are retained with the file relating to the incident.

Caught on Tape – Video Monitoring and Evidence

333        As some of the cases we reviewed clearly demonstrate, correctional institution security cameras can provide persuasive and incontrovertible evidence to confirm or refute allegations of excessive use of force.  Video cameras can also have a substantial deterrent effect in preventing abuse of inmates.

334        Video evidence is often the best evidence available in cases where it is typically the inmate’s word against multiple reports filed by correctional staff.  For example, after reviewing video of an incident on April 6, 2010, at the Ottawa-Carleton Detention Centre, the Correctional Investigation and Security Unit determined that a correctional officer had punched an inmate without provocation before pushing him into his cell.  While the inmate had been disruptive and unco-operative earlier that morning, there appeared no justification for the force captured by the institution’s cameras.  The video evidence contradicted accounts of the officer who had assaulted the inmate, as well as of other correctional officers who maintained their colleague acted in self-defence to ward off a head-butt by the inmate.  The video showed that one officer who supported his colleague’s account was actually looking away at the relevant time and therefore could not have seen what happened.

335        In an incident at Niagara Detention Centre on August 12, 2010, the Correctional Investigation and Security Unit found that the video didn’t correspond to the reports submitted by correctional staff.  The officers were having difficulty with an inmate who was reluctant to change cells and was packing his belongings at a frustratingly slow pace.  The video showed a correctional officer moving close to the inmate’s face and suddenly head-butting the inmate, pushing him onto the bed, and then repeatedly striking him.  Other officers were summoned, and amidst the melee, a total of 12 apparent blows were captured on camera.  Three officers reported that it was the inmate who instigated the use of force by aggressively moving towards their colleague.  However, faced with the video evidence, two of them retracted their original versions of events.  The officer who initiated the head strike eventually admitted he had been affected by the inmate’s negative attitude, made a poor decision, and lost control.

336        Video evidence similarly played a significant role in uncovering a case of excessive use of force that occurred at the Central East Correctional Centre on June 19, 2011. According to staff reports, a correctional officer was conducting a strip search of an argumentative inmate when the inmate suddenly threw his sweater in the officer’s face.  The officer responded by ordering the inmate to the ground.  When the inmate failed to obey this command, the officer directed the inmate to the floor with his right arm.  The inmate continued to resist, and other officers arrived and helped to handcuff him.

337        The institution reviewed the video for its internal investigation of the incident.  It showed the inmate with his back to the correctional officer, throwing his last article of clothing, a sweater, toward him – but it came nowhere near the officer’s face.  What the occurrence reports also had neglected to mention, but the video captured, was the officer deftly catching the sweater, then moving towards the inmate, punching him in the back of the head, grabbing him by the front of the neck in a choking fashion, and pushing him down on the floor.  Faced with overwhelming evidence showing unauthorized force, the Ministry dismissed the officer.  The Kawartha Lakes Police Service also charged him with criminal assault.  An operational manager was also disciplined for his negligence in managing the incident.  His 20-day suspension without pay was reduced to 12 days after he filed a grievance with the Public Service Grievance Settlement Board.

338        To protect inmate privacy, video cameras are not installed in cells.  They are typically located on the perimeter of correctional facilities, such as in the yard area where inmates go for fresh air and exercise, as well as in living units, corridors, and common areas such as “day rooms.”

339        Under the Ministry’s new investigations policy and local investigations report process, copies of videos relating to incidents of use of force must be included in the use of force package and reviewed during internal investigations of such cases.  This practice applies whenever force is used – not only in cases where it is alleged to be excessive.

340        While the Ministry policy reflects the importance of video evidence, there remain some practical limits to its implementation, and areas where further improvement is needed.
 

Inadequate Video Coverage, Capacity and Compatibility

Figure 8: Elgin-Middlesex Detention Centre.
Photo provided by Sun Media.

 

341        The Assistant Deputy Minister, Operational Support told us all of the Ministry’s facilities have at least some video monitoring capability.  He provided information about the number of cameras at each location.  The scope and quality of video coverage varies amongst institutions.  Some have “surveillance” cameras that cannot record images for later viewing.  The superintendent of one jail told us none of the cameras at his facility had a “record” function.  In November 2011, the superintendent of a large correctional centre told us only about 40% of the security cameras at that facility could record images.  

342        The number and strategic placement of cameras also differs from institution to institution.  One superintendent of a jail told us video cameras at that facility were only installed at doorways, in stairwells, and access points, but not in inmate living areas.  A superintendent of a larger centre said his institution had some surveillance “blind spots” where inmates and correctional staff could interact outside the range of video monitoring.

343        Our Office has received complaints from inmates alleging that correctional staff deliberately took them beyond the view of video cameras before using excessive force.  Correctional Investigation and Security Unit reports have also identified situations of excessive use of force taking place in rooms, elevators or corridors where there were no cameras.  This occurred in the assault on inmate Colin at the Ottawa-Carleton Detention Centre.

344        There is also a range of video technology used by institutions across the province.  While some have new closed-circuit television systems, others have outdated equipment that produces poor, grainy and sometimes indecipherable images.  Some of the Correctional Investigation and Security Unit’s reports have remarked on problems with video quality.  My Office’s investigators have encountered similar difficulties in some cases.

345        The Correctional Investigation and Security Unit also told us videos obtained from correctional facilities are sometimes incompatible with the equipment it uses.  This can result in delayed investigations.  One regional director told us that problems with compatibility of videos from a large correctional centre in the area led to delays of several months in reviewing cases of use of force.  

346        The Ministry is aware of the need to improve the video capacity within its institutions.  About two years ago, it assigned an official to conduct an inventory of the video technology used by institutions across Ontario and to source appropriate equipment.  The Ministry informed us that over the next three years, it will invest up to $5 million a year to enhance the closed-circuit television and security systems within its facilities, by installing new or updating current systems.  Its upgrade of video systems will start with larger institutions where incidents of use of force are more prevalent.

347        In 2011-2012, more than 200 closed-circuit television cameras were installed at the Toronto East Detention Centre, and efforts are underway to install hundreds of cameras at three other detention centres and a correctional centre.  The Ministry also plans to install additional cameras in three other facilities in 2013-2014.     

348        It is encouraging that the Ministry is beginning to outfit its facilities with better closed-circuit television systems.  However, I am concerned that there are still institutions that lack sufficient video cameras capable of clearly recording incidents of use of force.  The Ministry should take additional steps to minimize opportunities for Ontario’s correctional staff to have unobserved contact with inmates and to preserve an accurate video record of inmate and staff exchanges.

349        Ultimately, as a priority, all correctional facilities should have closed-circuit television systems, strategically placed to ensure maximum observation coverage, capable of accurately recording use of force events, and compatible with equipment used by regional offices and the Correctional Investigation and Security Unit.

 

Recommendation 20

The Ministry of Community Safety and Correctional Services should continue to enhance closed-circuit television capacity in correctional facilities as a priority, and ensure such systems:

- Are placed to allow maximum observation of inmate and correctional staff interactions;

- Allow for clear and accurate recording; and

- Are compatible with equipment used in regional offices and the Correctional Investigation and Security Unit.

 

Erasing the Video Record

350        Another challenge with video evidence is that institutions have different practices for storing it.  Some routinely record over video that has been gathered.  The length of time that videos are kept before they are recorded over varies based on institutional custom and the capacity of the equipment.  We heard that some institutions routinely record over video after 60 days; others after 90 days.

351        Ministry policy now requires that copies of videos be retained in any case where force is used, but sometimes video is no longer available by the time an allegation of excessive use of force is made.  The reality is that some correctional staff inadvertently or deliberately fail to disclose cases of use of force, and inmates, fearful of retaliation, sometimes hesitate to alert anyone about abuse.  It is not unusual for inmates to raise allegations of excessive use of force only after they have been released or transferred to another facility; we reviewed several such cases.  In cases like this, where significant time has elapsed since an incident, video evidence can be critical.  However, we are aware of at least one case in which the video evidence had already been destroyed by the time the complaint emerged.

352        The Ministry should adopt a formal policy ensuring consistency amongst institutions relating to the length of time video recordings are stored, and clarifying the circumstances when videos can be erased or recorded over.  In recognition that some allegations of excessive use of force are delayed, video recordings should be retained for a reasonable time.  In most cases, a six-month retention schedule would likely suffice.  The Ministry should also ensure that the technology installed in its institutions is capable of meeting this standard.

 

Recommendation 21

The Ministry of Community Safety and Correctional Services should develop a policy requiring that all correctional facilities retain copies of videos from security monitoring for a consistent and reasonable period of time.

 

Transporting Inmates Off-Camera

353        Another issue raised in complaints to our office involves inmates being assaulted by correctional staff while being transported in vans that are not equipped with cameras.  One correctional officer acknowledged to us that this occurs, and is typically referred to by staff as “dummying the inmate off-camera.”

354        The Supreme Court of Canada recently considered a case from Quebec in which an inmate was charged with uttering a threat after he was deliberately provoked by a prison guard while in transit between court and a penitentiary.  In response to the threats, the guard grievously assaulted the inmate, who was chained, shackled, and handcuffed in a prison van.  The Court upheld a stay of the threatening charge based on the infringement of the inmate’s constitutional rights.[31]

355        In order to protect inmates from potential abuse during transportation, the Ministry should ensure all vehicles used to transport inmates are outfitted with video recording equipment.  Several police services follow this practice, which enables them to capture an accurate record of any interaction with detainees.  Equipping correctional services vans with video technology would reduce the risk of improper staff contact with inmates.

 

Recommendation 22

The Ministry of Community Safety and Correctional Services should install video cameras in vehicles used for inmate transportation.

 

Lack of Cell Coverage

356        For privacy reasons, inmate cells are not equipped with video surveillance cameras.  However, much of the questionable interaction between staff and inmates happens in inmate cells.  Sometimes cameras installed outside of the cell area are able to capture some of the action, but often there is simply no video record.  In his June 20, 2012 report, the Chief of Oversight and Investigations recommended, based on federal penitentiary practices, that the Ministry require hand held video and audio recording equipment to be used during all cases when force is used, including when staff enter cells, when inmates are returned to their cells and when medical treatment is offered.  This appears to be a reasonable suggestion, and one that the Ministry has undertaken to implement beginning in summer 2013.  I will monitor its progress in this regard.

 

Recommendation 23

The Ministry of Community Safety and Correctional Services should implement a policy requiring hand held video and audio recording equipment be used during all use of force incidents.

 

Auditing Capacity and Quality

357        To ensure that the Ministry’s initiative to upgrade its closed-circuit television systems does not lose momentum, it would be worthwhile for the Ministry to monitor the adequacy of its systems after its enhancement plans are implemented. To accomplish this, it could periodically audit these systems to ensure they are functioning properly, clearly recording events, appropriately positioned, and compatible with the technology used by the regional offices and Correctional Investigation and Security Unit.

 

Recommendation 24

The Ministry of Community Safety and Correctional Services should conduct periodic audits of the closed-circuit television systems in its correctional institutions to ensure they are functioning properly, clearly recording events, appropriately positioned and compatible with equipment used by the Ministry when reviewing and investigating cases of use of force.

 

Video Replay

358        Some Correctional Investigation and Security Unit investigations revealed that correctional staff involved in incidents of use of force viewed video of the incidents, either while preparing required reports or in advance of interviews with Unit inspectors.  In inmate Frank’s case, officers got together and viewed the video; in inmate George’s case, an assistant deputy superintendent allowed the perpetrator to watch the video of the assault.

359        It is important that the notes and testimony of correctional staff reflect their personal and independent recollection of events.  Videos of incidents should not be used as an aid in these situations.  When officers have the opportunity to review video evidence to supplement their memories, there is a risk that their accounts will be improperly influenced and focused on explaining away the recorded images.

360        To reduce the risk of tainted witness recollections, the Ministry should amend its report writing and other policies relating to use of force to expressly prohibit correctional staff involved in an incident of use of force from viewing the relevant video.  Access to video images in these circumstances should be restricted to institutional managers and other officials directly involved in investigating the incident.

 

Recommendation 25

The Ministry of Community Safety and Correctional Services should amend its Report Writing policy and other policies relating to use of force to ensure that correctional staff involved in an incident of use of force are prohibited from viewing related video images, and access to security videos is restricted to those directly involved in investigating the incident.

 

The ABCs of Use of Force – Enhancing Training

361        In the volatile and fluid environment of the correctional system, inevitably situations will arise that require inmates to be controlled through the application of force.  Although sometimes it is clear that the force used on an inmate is excessive, distinguishing appropriate and inappropriate use of force can be challenging.  Education and training are key in ensuring correctional officers and managers are able to identify where the line should be drawn.

362        Correctional officer recruits receive basic training at the Ministry-run Ontario Correctional Services College before they start working in the field.  The training includes 12 hours of classroom instruction and 24 practical sessions relating to defensive tactics.

363        The “defensive tactics” curriculum is based on using physical restraint techniques as a last resort, when communication and other methods have failed.

364        Recruits learn that force is used to gain control, and that only the degree of force necessary to gain control should be used.  Once control is established, force is to be withdrawn.  

365        Officers are also taught that some inmate management techniques are not permitted, such as applying restraints around an inmate’s head or neck, “hogtying” (tying an inmate’s hands and ankles together), or applying “choke” holds.  They are also instructed about certain positions that are dangerous, such as restraining an inmate in a prone position and applying pressure to the shoulders, back or lower spine.

366        Unfortunately, educational theory does not always translate into practice once officers enter the correctional system.  

 

Fanning the Flames – De-escalation Training

367        As part of their basic training at the college, all correctional officer recruits receive 1.5 hours of instruction on defusing or de-escalating hostile situations.  As the training material notes:

The decision to apply force is a judgment call based on a number of circumstances at the time.  However, in all cases, the application of force must be a last resort….  In a vast number of situations, the officer’s presence, tone     and voice, being calm, using a professional demeanour will do more to control the offender’s acting out behaviour than the application of physical force.

368        Recruits are told how to identify what triggers their own emotional response, in order to control themselves in volatile situations.  They learn how to approach angry and belligerent inmates, and are cautioned not to take the “bait” when inmates behave in ways designed to incite an emotional reaction, such as anger, intimidation or guilt.  They also learn common-sense tips about avoiding escalation of conflict.  For instance, they are taught not to appear verbally or physically threatening, not to invade an inmate’s personal space or engage in unnecessary physical contact.

369        However, these important lessons learned in the classroom can fade in the field.  A common feature of many cases of excessive use of force is threatening or provoking action on the part of correctional staff that sparks or inflames a confrontation with an inmate.

370        Our Office has heard of numerous cases in which correctional officers entered cells alone, in breach of Ministry policy, to deal with loud, insulting or verbally abusive inmates.  Such “counselling” of inmates typically involves officers standing directly in front of them, invading their space as an intimidation tactic.  This conduct is in direct contrast to the training provided at the college, and it is unsurprising that in many cases it leads to an escalation of conflict.
 
 

When the Gloves Come On – Inmate Jason

371        Inmate Jason’s case is a striking example of how correctional officers can incite aggressive response through provocative behaviour.       

372        On August 11, 2011, Jason was at the Central East Correctional Centre and becoming progressively anxious about where he was to be housed.  He was worried that his personal safety was at risk from inmates in the unit where he was.  Staff placed him in a multi-purpose room while they decided what to do.  Jason paced back and forth while he waited and intermittently discussed the situation with correctional staff.  An acting operational manager finally directed that Jason be transferred to another unit, an arrangement Jason seemed to accept.  But instead of following this direction, correctional officers brought him back to the area he had expressed concern about.  Unsurprisingly, Jason refused to co-operate.  Staff took him back to the multi-purpose room.  They dumped his belongings on the floor, threw some into a bin, kicked an item towards the wall, and, according to Jason, held up some of his things and made mocking comments.  Jason became more agitated.  He paced and removed his coveralls.  He says he did this because a staff member threatened him through the glass partition at the front of the room, and he feared staff could use the coveralls to grip him and throw him around.

373        Correctional staff responded to Jason’s escalating behaviour by calling an alarm, even though Jason did not pose an immediate risk to himself or others.  As Jason watched through the glass, four correctional officers came toward the room he was in, donning gloves.  One officer later explained that it was a “show of force” to calm Jason down.  However, their actions predictably had the opposite effect.  Jason, by now on full alert, was positioned at the door to the room in a fighter’s stance.  As he told our investigators:

I know that these guys are now putting on their gloves and rallying up to come in the room together, they are not coming to sing “Kumbaya.”  These guys are going to try to manhandle me and I wasn’t allowing that to happen.  I was going to defend myself in whatever shape or form is necessary…   I warned them…. And they laughed.  They basically laughed and sneered from the other side of the door.

374        When the first officer entered the room, Jason was ready for him.  He punched the officer, knocking him to the floor.  The next officer met the same fate.  Soon more than 30 staff responded.  In the end, a total of seven officers were injured while attempting to subdue Jason, including one who suffered a broken hand.  Meanwhile, Jason, who unbeknownst to staff was a trained boxer, received abrasions to his forehead and left ankle.  

375        The Correctional Investigation and Security Unit investigated the incident.  It concluded that the entire episode was unnecessary and could have been avoided if staff had followed their supervisor’s directions about Jason’s placement and exercised better judgment, instead of escalating the situation and provoking him when he was already agitated.

376        Correctional officers are required to take refresher training in several topics every two years, including defensive tactics.  However, the standard defensive tactics refresher training does not include diffusion of hostility.  Only correctional officers hired from July 2004 onward, and who are required to complete community escort training, receive retraining on diffusion of hostility.  This training is optional for officers hired before July 2004, which means the majority of Ontario’s correctional officers are not required to take it.  About 66% of all correctional officers were hired before community escort training and retraining became mandatory.  Many of these older officers have elected not to receive this training.  Consequently, a large number of correctional officers receive no refresher training on diffusion of hostility.

377        It is unclear why this critical element of handling inmates is not reinforced for all officers serving in Ontario’s correctional institutions.  The Provincial Coordinator, Use of Force Programs told us seasoned correctional officers should also receive updated instruction in this area.  Another trainer at the college told us:

We spend millions of dollars, hours upon hours training people how to defend themselves. We spend far too little time telling them how to deal with people.

378        Correctional officers, operational managers, and senior staff at institutions would all benefit from regular training on de-escalating volatile situations. Emphasis on this type of training would likely contribute to improved practices and safer interactions for both staff and inmates.

 

Recommendation 26

The Ministry of Community Safety and Correctional Services should ensure that periodic training on diffusion of hostility is provided to all correctional staff, including management personnel.

 

Dealing with Inmates with Mental Illness and Special Needs

379        It is a sad reality that many of those incarcerated in Ontario’s institutions suffer from mental illness, and/or developmental or other disabilities that affect their behaviour.  Some 14,000 inmates who entered the system in 2011-2012 were identified as having mental health issues.  Consistent with their disabilities, some inmates display disruptive conduct that is resistant to or intensifies upon application of standard inmate control measures.  Correctional staff can unwittingly ignite conflicts with these inmates, leading to unnecessary and potentially excessive use of force.  Shamefully, as was demonstrated in the case of inmate Albert (whose mental illness was associated with a long history of violent acts), inmate Colin (whose brain injury and psychiatric disability presented many challenges to correctional staff), and inmate George (whose anxiety over not receiving his medication on time likely contributed to his acting out), these markedly vulnerable inmates are often subjected to punitive treatment and even deliberate abuse.

380        The Ministry’s latest Use of Force policy specifically directs that when inmates exhibit signs of mental illness or are known to have mental health issues, correctional staff should consider getting health care staff involved, moving the inmate to a quieter environment and invoking de-escalation techniques.  However, without specialized training relating to mental illness and other disabilities affecting behaviour, correctional staff can misinterpret inmate conduct and mismanage or precipitate conflict situations.

381        In November 2010, the Ministry introduced a pilot training program on dealing with inmates with special needs and mental health issues.  It has continued to provide this training to selected correctional staff.  However, to date, it has only trained 214 employees, and of those, only 134 worked in adult institutional services (e.g., correctional officers, operational managers and health care professionals).  This number represents a very small fraction – about 3% – of the nearly 4,000 front-line correctional staff in Ontario’s jails, correctional centres, detention centres and treatment centres.

382        As this report was being written, the province was in the midst of a coroner’s inquest into the tragic death of 19-year-old Ashley Smith, an inmate in the federal prison system who killed herself in her cell while guards stood watch.  As Ms. Smith’s case demonstrates, dealing with individuals with complex emotional, mental health and/or behavioural problems within the correctional system is uniquely challenging.  I am encouraged by the fact that the Ministry is beginning to train its staff in this area, but I believe that more effort must be devoted to this initiative.  Specialized training on dealing with people who have disabilities that could affect their conduct during incarceration should be provided to all new recruits and become a staple for staff in correctional institutions.  Although the Ministry has recently concentrated its attention on training staff on report writing and other policies relating to the use of force, it should ensure that renewed efforts are made to have all correctional staff responsible for dealing directly with inmates trained in this area, as a priority.

 

Recommendation 27

The Ministry of Community Safety and Correctional Services should, as a priority, ensure that instruction on dealing with inmates with mental health and special needs challenges is provided during recruit training and as part of ongoing training for all correctional staff who are responsible for dealing directly with inmates.

 

Staying Fresh

383        Although correctional officers are required to undergo recertification in defensive tactics every two years, their training is often significantly delayed.  Some correctional officers we interviewed said they had not received this training in four or five years. One of the factors contributing to this backlog is a lack of instructors.

384        Correctional officers working in institutions are retrained in defensive tactics by teams composed of an instructor and lead instructor.  These instructors are volunteers, often correctional officers, who have been specifically trained by the provincial college.  There are only 97 in all; 35 of them lead instructors.  Some 23 instructor positions are vacant.  In addition, not all institutions have both an instructor and a lead instructor, resulting in delays in arranging refresher training.   

385        Some correctional institutions told us they are unable to keep up with staff training because they are understaffed.  The institutional training manager at one detention centre told us the institution is years behind in its refresher training because of staff shortages and difficulty in securing a venue and transportation.  A deputy superintendent at the same centre confirmed that scheduled training days are often cancelled because of staffing problems.

386        Unless regular refresher training is provided, staff could forget proper techniques and resort to other methods to control inmates.  Some correctional officers told us that they did not remember the techniques they were trained on at college, but felt fortunate that they were able to rely on various martial arts skills they had acquired on their own time.

387        Reports by the Correctional Investigation and Security Unit have noted that unauthorized practices have become commonplace at some institutions.  In two cases from the Central North Correctional Centre – including inmate George’s – staff considered it acceptable to have a handcuffed inmate walk backwards, bent at the waist, with his head down.  The Unit consulted with Ministry trainers, who confirmed that this technique is not approved and can cause breathing difficulties as well as elevated blood pressure.  The Unit observed that having inmates assume this position seemed to be an accepted practice at that facility; in one case, the inmate was walking in this manner under the direct supervision of an operational manager.  The Ministry’s policy restricts using restraints that are linked together or “hogtying” inmates, as this can cause positional asphyxia and lead to cardiac arrest.  The position these inmates were placed in essentially mimicked this prohibited technique.

 

Figure 9: Central North Correctional Centre - Inmate George during escort.
Photo obtained from Ministry of Community Safety and Correctional Services records.

 

388        It is critical that correctional staff receive regular and proper training in defensive tactics.  Training should not be a perennial casualty to understaffing.  It is incumbent on the Ministry to ensure that correctional staff receive updated training.  It is insufficient for the Ministry to say training is required.  It must go further to ensure that the resources are available to enable institutions to meet this obligation.  It is also time for the Ministry to consider establishing permanent positions responsible for training in the field.

 

Recommendation 28

The Ministry of Community Safety and Correctional Services should ensure that correctional staff are regularly trained in authorized defensive tactics, and take steps to create permanent field training positions.

 

Inconsistent Defensive Training

389        Once correctional officer recruits leave the Ontario Correctional Services College, they may be exposed to an array of use of force techniques in the field – not all of them sanctioned.  While volunteer instructors must sign a letter acknowledging that they will teach within the curriculum, the training delivered to seasoned correctional officers is not monitored provincewide for quality or consistency.

390        One of the trainers we spoke to at the college noted that it is worrisome that some long-serving defensive tactics instructors consistently fail the test to become lead instructors.  He questioned whether these instructors should remain in the program.  He recommended to senior Ministry management that monitoring teams be established to ensure that instructors only teach the accepted defensive tactics curriculum.  He expressed concern about what is being taught in the field:

There are a lot of tactics out there that we don’t authorize for training.  A lot of people do a lot of things [like martial arts] outside of their correctional officer job… we don’t know if they’re teaching variations on a theme on what we do … without someone being there to watch.

391        Flawed defensive tactics training in institutional settings could contribute to the development of inappropriate and institution-specific use of force practices.

392        Training in defensive tactics is only as good as the trainers.  The Ministry should take steps to ensure that its training program is consistent throughout the correctional system, and that instructors teach only authorized techniques.  Its failure to do so puts inmates at risk – and also correctional staff, who could find themselves and their jobs in jeopardy for using methods that they wrongly believed were acceptable defensive tactics.

 

Recommendation 29

The Ministry of Community Safety and Correctional Services should establish a system for monitoring the quality and consistency of instruction in defensive tactics delivered to correctional staff by volunteer instructors.

 

Reality Check – Tactics in the Field

393        Several of the correctional officers and senior managers we interviewed questioned the adequacy of the current defensive tactics training.  Some felt it was theoretical, unrealistic, and of little use in real life institutional settings.  As one correctional officer put it:

They are pretty fancy moves that look great on an instruction video, but in close quarters in a jail… There are no rules.

394        It is unclear whether these observations reflect a lack of understanding on the part of the college about the real-life situations faced by correctional staff, or a failure on the part of correctional staff to appreciate and apply the authorized techniques they are taught.

395        There is no comprehensive list of approved defensive tactics, and we were told that some flexibility is essential to account for situations when correctional staff must make split-second decisions in defending themselves and others from imminent harm.  However, it would be useful if the Ministry surveyed correctional employees to determine what defensive measures they typically employ in dealing with inmates.  This could be done on a no-names basis to encourage open and honest dialogue.  Once it is determined what is actually happening in the correctional system, then training and direction could be focused on areas where safe and proper defensive strategies and actual correctional practice appear to diverge.

 

Recommendation 30

The Ministry of Community Safety and Correctional Services should survey correctional staff to determine the physical restraint and control techniques actually being used in its institutions in order to focus its training efforts on problem areas.

 

Unnecessary Distractions

396        Correctional officers commonly use what are referred to as “distractions” to encourage resistant inmates to co-operate.  According to Ontario Correctional Services College training materials, distraction techniques are intended to separate the inmate’s mind from his or her body, allowing officers an opportunity to take control.  Distractions may range from simple yelling or screaming to very complex pain distraction and misdirection techniques.  It is quite common to see references in occurrence reports to “distractions” or “open-handed distractions.”  Usually, these notations mean the officer hit the inmate with an open hand.  Provided these tactics are used in circumstances when they are required to control a resistant inmate, they will generally not be considered an unreasonable use of force.  However, our investigation found that there was considerable confusion about whether other forms of physical distraction are permissible – in particular, closed-fist punches.

397        When inmate Helen was repeatedly hit with a closed fist, the Correctional Investigation and Security Unit not only found that the use of force was unprovoked, but it was told by the Provincial Coordinator, Use of Force Programs that a closed-fist punch is not a distraction technique taught in defensive tactics training or approved by the Ministry.  If the Ministry does not authorize the use of punches, can they ever be acceptable?  The answer appears to be “maybe” and “it depends.”

398        In February 2012, an inmate wrote to our Office alleging that on January 18, 2012, correctional officers at the Ottawa-Carleton Detention Centre had entered his cell, jumped him and broken his hand.  There was no evidence to support the inmate’s allegation that he was assaulted in his cell, but there was video showing correctional staff struggling to gain control of him on the ground, and an officer punching him seven times on the side of his body.  According to the institution, the inmate was intoxicated on “homemade brew” and became threatening and resistant while being escorted to segregation.  The inmate had not broken his hand as he alleged; medical examination revealed he had an old wrist injury.

399        Still, during the facility’s internal review of the matter, the deputy superintendent expressed concern about the extent of force used on the inmate.  The risk management team determined that the force used was justified, given the inmate’s condition.  The regional director observed that the inmate should have been handcuffed before being escorted to segregation, as his intoxication put him at higher risk of becoming abusive or violent.  However, in discussing the case with my Office, she justified the “approved distraction techniques” used by officers to control him.  She said that although “open-handed distractions” are more widely used, given the inmate’s inebriated state and the degree to which he was struggling, the closed-handed punches helped bring him under control quickly.

400        Initially, she told us the Ontario Correctional Services College had a list of all approved distraction techniques and said she would obtain it for us.  However, she later said there was no such list and that the type of distraction that staff use is a matter of judgment.

401        In a recent investigation carried out by the New South Wales Ombudsman,[32] it is noted that in some jurisdictions such as the United Kingdom and New Zealand, correctional staff are required to use prescribed holds and are not allowed to improvise.  At the same time, the New South Wales Ombudsman also observed that there are differing views on the feasibility of this approach “due to the fluid and unpredictable nature of incidents.”  

402        Some approved control measures are taught by the Ontario Correctional Services College.  Officers also learn to avoid certain restraints, which are expressly prohibited.  But there is no list setting out what is permitted and what is not.  Ministry officials have indicated that formally prescribing approved techniques would be impractical, since officers need some flexibility to respond to real-life situations.  There is some merit to this argument, but it would assist correctional staff, as well as those responsible for monitoring their conduct, if greater clarity could be provided on what distractions and management techniques are generally permissible, and in what circumstances.

403        For example, the Ministry could issue a list of standard authorized techniques taught at the college.  The Ministry could also include reference to those measures that present risk of harm to inmates, and which are prohibited – such as the problematic Central North Correctional Centre practice of making restrained inmates walk backwards, bent at the waist.

 

Recommendation 31

The Ministry of Community Safety and Correctional Services should issue a list of standard authorized defensive techniques taught at the Ontario Correctional Services College, as well as prohibited control measures.

 

404        The Ministry could also specifically instruct staff that given the dynamic and sometimes volatile nature of correctional life, there are exceptional situations in which measures not listed as authorized may be used.  However, it should keep track of any deviations from standard practice.  The Ministry should require correctional staff to identify cases in which unlisted techniques have been employed, and provide a detailed account of why they felt it necessary to use extraordinary distraction or control measures.

 

Recommendation 32

The Ministry of Community Safety and Correctional Services should amend its Use of Force and related policies to expressly direct that use of physical techniques to control inmates that are not specifically approved is restricted to exceptional cases, where they are justified in the circumstances.

 

Recommendation 33

The Ministry of Community Safety and Correctional Services should amend its Report Writing policy to require that any use of physical techniques to control inmates that are not listed as authorized must be expressly identified and the reason for their application fully explained in related institutional reports.

 

Lack of Management Training

405        While correctional officers are – at least in theory – required to take regular refresher training in defensive tactics, operational managers do not receive this training.  Ministry officials told us that most cases operational managers rise from within the ranks of correctional officers and are experienced in defensive techniques.  Still, we learned that some correctional managers may never have worked as correctional officers or received even basic instruction in defensive tactics.  

406        As well, some operational managers who were once correctional officers told us defensive tactics training has changed over the years and they are unfamiliar with current authorized practices.

407        Operational managers told us insufficient and outdated training on defensive techniques, causes them considerable difficulty in their work.  They are responsible for supervising correctional officers when they use force.  Ministry policy requires that they be consulted before restraints are applied to inmates.  They must also gather all reports relating to incidents of use of force and ensure they are complete and accurate.  They said they find it a challenge to provide guidance and supervision when they don’t understand the terminology used by officers in their reports, and are sometimes unfamiliar with the techniques employed. One manager said:

It’s funny, once you become an operational manager, there’s no use of force training.  I can’t figure it out… If they’re going to manage staff to use force, they’re going to manage an incident where force is going on, they have to be versed in it.  They have to understand it.  They don’t have … any of the routine training that the correctional officers get… it blows me away.

408        Operational managers are even more disadvantaged when it comes to supervising correctional officers who are members of the Institutional Crisis Intervention and Cell Extraction Teams, which receive specialty training in use of force and defensive techniques, and are authorized to use techniques above and beyond those generally used by correctional officers.

409        The Provincial Coordinator, Use of Force Programs told our investigators:

There is a major gap.  It is inadequate.  There is a faction that believes, “Oh, they’re operational managers they’re all trained, they know all this stuff.”  Well, they don’t. …. Some of these people, the last time they had use of force theory would have been 15 years ago.

410        To illustrate the problem, he referred to one operational manager who participated in a competition for a defensive tactics training position.  He explained that this individual could only identify two of the five situations in which force is authorized.  Yet he was responsible on a daily basis for supervising incidents in which force is applied.

411        Deputy superintendents and superintendents are also responsible for ensuring that only appropriate defensive tactics are used against inmates.  Under the Ministry’s revised use of force policy, greater emphasis is now being placed on their role in reviewing documentation of such incidents, and ensuring that any force employed is within authorized limits.  However, senior managers also do not receive any training in defensive tactics beyond what they learned if they were trained as correctional officers years before.

412        There is a significant disconnect between the expectation that operational managers and senior institutional managers will ensure that only reasonable force is used, and the level of training they receive in defensive tactics.  This should be remedied.  All supervisory staff should be as familiar with the latest authorized defensive tactics and terminology as the officers they manage.

 

Recommendation 34

The Ministry of Community Safety and Correctional Services should ensure that all operational managers, and senior managers within its institutions receive regular training in defensive tactics.

 

Risky Business – Untrained Community Escorts

413        Another area in which training is deficient – and potentially affects the safety of inmates, officers, and the public – relates to escorting inmates out in the community.  Correctional staff must accompany inmates to medical appointments, funerals and hospital.  Two correctional staff must accompany inmates at all times on such occasions, known as “community escorts.”  The Ministry’s requirements relating to use of force and reporting apply during escorts.

414        Since 2004, the basic training program for correctional officers has included instruction on community escorts.  This includes training on the use of expandable batons and oleoresin capsicum spray (similar to pepper spray).  Only staff who are certified in the use of this spray are authorized to carry it.  However, we learned that because of staff shortages, those who were trained before 2004 – as well as operational managers who have never received community escort training – sometimes accompany inmates to medical and other community appointments, armed with weapons they are not trained to use.  As of fall 2011, only 21 operational managers in the province were certified to use the spray.  As one trainer said in our interviews: “I’ll tell you right now, they’re sending operational managers every day out in the field with weapons they are not authorized to carry.”  The Ontario Correctional Services College has records confirming which correctional staff are certified in the use of these weapons, but operational managers do not have ready access to this information.

415        Our office has received complaints from inmates alleging that they were assaulted while being escorted outside of a correctional facility.  One correctional officer from a jail told us that in her experience, it is common for excessive use of force to occur during community escorts.  She gave the example of an inmate with special needs who complained to her that two officers assaulted him when they accompanied him outside of the jail.  When she reported this incident to her manager, he said the inmate was being “an asshole” and “got what he needed.”.  The correctional officer refused to provide our Office with details so that we could follow up.  She explained she had already suffered reprisal, including physical assault, at the hands of her colleagues for simply reporting the inmate’s allegation of assault to a manager.

416        Sending correctional staff out into the community with inmates with weapons they have not been trained to use is a recipe for disaster.  The risks associated with misuse of community escort weapons calls for prompt remedial action.

 

Recommendation 35

The Ministry of Community Safety and Correctional Services should ensure that only correctional staff trained, and properly certified, accompany inmates into the community and use oleoresin capsicum spray and batons, and that institutions are provided with a updated list confirming which staff hold current certification in their use.

 

Training the Overseers

417        Although Correctional Investigation and Security Unit inspectors consult with instructors at the Ontario Correctional Services College to confirm the propriety of certain defensive techniques, they do not receive any formal training in defensive tactics.  The Chief of Oversight and Investigations noted to us that inspectors need to know what the policies and standards are if they are expected to reach conclusions on whether officers have complied with them.  In his June 20, 2012 report, the Chief recommended that all inspectors receive appropriate training based on core competencies.  While he did not specifically mention use of force training, the Ministry should ensure, consistent with the intent behind this recommendation, that inspectors are trained on the various policies and standards they are responsible for overseeing.

 

Recommendation 36

The Ministry of Community Safety and Correctional Services should ensure that inspectors responsible for investigating allegations of excessive use of force receive defensive tactics and other training relevant to the use of force in a correctional context.

 

Failure to Review New Policies

418        The Ministry has spent considerable time redrafting its policies and procedures relating to the use of force.  But its efforts will be in vain unless correctional staff actually read and understand them.

419        Several correctional managers expressed frustration to us about the frequency of the recent changes, including numerous revisions of the local investigations report, which led to confusion and duplication of work when they failed to use the latest version.  Some also expressed concern about the introduction of the Risk Management Team approach prior to completion of training on this new process.

420        From frontline correctional officers to superintendents to regional directors, staff admitted to us that they had not read or “fully” reviewed the policy revisions relating to the use of force.  Some correctional staff complained that there are too few computers on their units to enable them to view new policies; others stated they were simply too busy.  Many of the most vitriolic critics of the new policies had not actually read the relevant documents.   

421        The Ministry has repeatedly emphasized that the basic requirements relating to use of force have not changed in its new policies, and that the revisions are directed primarily at reinforcing the responsibilities of various levels of correctional staff.  Still, it is important for all concerned to be familiar with them.

422        We found at least one institution that was quite diligent in ensuring its staff were aware of new policies.  The superintendent of this detention centre told us she sent policy revisions out by email to all staff, posted them in living units at the facility, and ordered that they be read at muster (daily pre-shift meetings).

423        The Ministry has issued memoranda to institutions to reinforce the new policies, including directing that they be read at muster for a period of time. However, lack of familiarity with the policy requirements appears to persist.  Some growing pains are to be expected when new policy is introduced, but given the apparent resistance to policy change within the correctional system, the Ministry will likely need to take additional steps to underscore the importance of all correctional staff becoming familiar with its policies and procedures.  Additional training might be required, or, at a minimum, correctional staff should be required to review and formally acknowledge in writing that they have read and understand all relevant policies.

 

Recommendation 37

The Ministry of Community Safety and Correctional Services should take additional steps to ensure that correctional staff are familiar with all policies and procedures relating to the use of force, including conducting additional training, and requiring that all staff acknowledge that they have read them.

 

Local Variations

424        In the past, there was significant variation across the province in applying the Ministry’s policies relating to the use of force.  At some institutions, if force was used but there was no visible injury to the inmate, the incident was not reported.  The Ministry’s new investigations policy is directed at removing these local inconsistencies, and we were told that it has helped.  However, inconsistency continues in some areas.

425        Sometimes it is a matter of terminology.  On September 18, 2012, the Assistant Deputy Minister, Institutional Services issued a memorandum clarifying that force should be defined as either “excessive” or “reasonable” – not “inappropriate,” as some staff were writing in reports.

426        Our investigation identified several contradictory practices amongst correctional institutions.

 

Notifying Inmates of the Right to Lay Criminal Charges

427        Every inmate who alleges that he or she was assaulted by correctional staff has the right to pursue charges – or to opt to rely on an internal investigation into the incident.  The Ministry requires that in these circumstances, inmates be provided with a form known as the “notification of right to pursue/decline laying of criminal charges” form.  But we heard conflicting explanations from senior ministry officials and institutional managers of how the form is to be used and who is responsible for giving it to inmates.  We learned that it is common for some correctional staff to offer this form to inmates whenever force is used, not just when there is an allegation that force was excessive.  In such cases, usually the same correctional officer who applied the force must give the inmate the option of pursuing criminal charges.  This is a source of considerable irritation for correctional staff.  As one deputy superintendent put it:

I’m going in and using force against an inmate as part of my job and then I’m going back to the inmate and saying, John, do you want to charge me?”

428        On the other hand, some officers indicated they have never offered the form to an inmate, regardless of the circumstances.

429        Recently, the Ministry accepted the Chief of Oversight and Investigations’ recommendation that superintendents be given the responsibility for telling inmates about their right to lay charges against staff.  This change would address concerns about this task falling to the officers involved.  But given that there is only one superintendent per institution, the Ministry will have to review the logistics of this approach.  Realistically, it should consider allowing some delegation of this responsibility to ensure that inmate notification is not delayed as a result of the superintendent’s other duties.     

430        At a minimum, correctional staff involved in an incident of use of force should never be involved in advising inmates of their right to have them charged.  This is not only awkward for staff, but potentially intimidating for inmates who may have been subjected to unreasonable force.

431        To avoid further confusion as well as conflicts of interest, the Ministry should take steps to clarify the process to be followed for notifying inmates of their right to lay criminal charges, including ensuring that those involved in using force on an inmate are not responsible for communicating with the inmate about this option.

 

Recommendation 38

The Ministry of Community Safety and Correctional Services should immediately clarify the process around the “notification of right to pursue/decline laying of criminal charges” form, and ensure that correctional staff involved in using force on an inmate are not responsible for communicating with the inmate about the option of bringing criminal charges.

 

Calling the Police – When to Do It

432        Correctional staff we interviewed also expressed some uncertainty about when police should be called in cases where force is used.  The most recent version of the Ministry’s policy on the use of force refers generally in one section to the operational manager contacting police, but only provides specific direction regarding police notification in cases where inmates allege they have been assaulted by staff.  Senior Ministry officials told us the police must be called whenever force is used, and this is consistent with a question-and-answer document distributed to correctional institutions in November 2011.  

433        On December 2, 2011, the Assistant Deputy Minister, Institutional Services issued a memorandum to all regional directors confirming that all incidents of use of force and allegations of assault must be reported to the local police.  Recently, the Assistant Deputy Minister, Operational Support also told us the Ministry would be issuing a policy to address the notification of police, and that the Ontario Association of Chiefs of Police had already been consulted about this.

434        Given that the description of “use of force” covers a wide breadth of physical contact, it is somewhat ambitious to suggest that the police should be contacted in every case it is applied.  There is also a risk that a large volume of routine police contacts could lead to the “boy who cried wolf” syndrome, where police might adopt a dismissive and complacent attitude towards such calls.  In many of the cases we reviewed, contact with police appeared to be a pro forma gesture – a few minutes in which the main objective seemed to be obtaining a police case number for the file.  On the other hand, since any use of force could be revealed to be excessive upon closer scrutiny, a cautious approach requiring regular contact with police might well be justified.

435        At a minimum, given the present ambiguity, the Ministry should amend its policy to expressly indicate which situations warrant contacting the police.  The Ministry should also, preferably in consultation with police authorities, outline what basic information institutional staff should communicate to police.  The Ministry should ensure that different types of situations are clearly distinguished in terms of context and severity, and that sufficient details are provided to local police to enable them to make an informed decision about how to respond.

 

Recommendation 39

The Ministry of Community Safety and Correctional Services should amend its Use of Force and related policies to clarify which situations warrant contacting the police and provide guidance on the details that should be communicated.

 

Calling the Police – Who Should Do It

436        In addition to the issue of when police should be contacted about incidents of use of force, there is the question of who should make the call.  It is important to ensure that calls about such incidents are taken seriously.  Police should be given enough information to make an informed response.  At present, operational managers must contact police in cases of use of force.  This contact must be noted in the offender incident report, which must be sent to the superintendent, regional director and Information Management Unit within an hour of the incident.

437        There is nothing preventing an operational manager who is directly involved in such an incident from being the police contact.  That is what happened in inmate Albert’s case, where the involved operational manager made a 22-second call to police, did not accurately describe Albert’s injuries and only emphasized that an officer had been hurt.  It was no surprise that police took no action.  There is always a danger that managers associated with an incident will be selective in the information they communicate, consciously or unconsciously, and will discourage police from responding.

438        The Chief of Oversight and Investigations has recommended that superintendents, not operational managers, should have the discretion to contact police in such cases.  The Ministry accepted the Chief’s recommendation, and will begin providing superintendents with discretion to contact police in summer 2013.  Superintendents will delegate their responsibility to deputy superintendents or shift supervisors as necessary to cover periods when they are absent.  This change should resolve some concerns about the quality of police notification in such incidents, but the Ministry will have to monitor it carefully.

439        Time is of the essence in criminal investigations.  Delays can result in evidence disappearing or being degraded.  The Ministry will have to be vigilant to ensure that restricting police notification to superintendents does not hamper the ability of local police to carry out timely investigations of incidents that might involve excessive use of force.

440        As well, given that superintendents’ authority will have to be delegated in some cases, the Ministry should make sure there is no potential for managers connected with an incident being assigned the task of contacting the police about it.

 

Recommendation 40

The Ministry of Community Safety and Correctional Services should prohibit management staff associated with a use of force incident from notifying the police about the case.

 

Recommendation 41

The Ministry of Community Safety and Correctional Services should monitor any change to its policy relating to police notification to ensure timely notification of police relating to incidents of use of force.

 

Adjusting the Risk Management Team Focus

441        The Ministry’s new Risk Management Team concept aims to ensure institutions conduct thorough and consistent reviews of use of force situations, and holds senior personnel accountable based on their areas of responsibility.  However, our investigation revealed that further refinements are necessary to ensure timely and adequate reviews.

 

Local Investigations Backlogs

442        Detection and deterrence of inmate abuse is most effective when authorities act swiftly to identify and address problematic conduct.  We heard from several institutions that the new local investigation and reporting requirements have slowed down the internal review process.  Members of the risk management teams are hard pressed to find time away from their other duties to review incidents diligently and prepare the new local investigations reports.

443        In January 2013, we learned there were about 100 cases awaiting local investigation at the Central East Correctional Centre.  The Toronto Jail had some 70 cases on its wait list, and the Ottawa-Carleton Detention Centre told us it had an extensive backlog.

444        An inmate at the Toronto Jail complained to our Office that staff assaulted him on April 10 and 16, 2012.  Five months later, there was still no investigation report on the incident.  On August 20, 2012, the jail’s superintendent sent out a memorandum identifying factors delaying completion of internal investigations, including failure to review initial reports for accuracy and signoff, and missing reports.  In another case we reviewed, it took the Ottawa-Carleton Detention Centre five months to complete a local investigation.

445        Time is the enemy in any investigation.  Delays can result in physical evidence disappearing and witness memories fading.  In the intervening period, misconduct and abuse can continue unchecked, and ultimately, delay may compromise the ability to substantiate and punish abuse.  The volume of cases awaiting investigation at various institutions is a disturbing trend.

446        In his June 20, 2012 report, the Chief of Oversight and Investigations recommended that larger institutions appoint a person dedicated to managing the local investigations report process.  He also recommended the Ministry establish a common electronic data collection system and install a local investigations report database in each institution, to eliminate time wasted faxing and mailing documents to regional offices and the Correctional Investigation and Security Unit.  The Ministry accepted these recommendations.  It committed to implementing better management of the local investigations report process and reviewing the database recommendations in spring 2013.  I will monitor the Ministry’s progress in introducing these changes, but my primary concern in this area is the mounting backlog of investigations.  The Ministry should actively monitor what is happening in the field and ensure that Ontario’s correctional institutions have the resources necessary to conduct timely local investigations.

 

Recommendation 42

The Ministry of Community Safety and Correctional Services should regularly monitor the number of incidents of use of force that are awaiting local investigation and the length of time institutions are taking to review such cases, and ensure that correctional institutions have the necessary resources to conduct timely and thorough local investigations.

 

Agreeing to Disagree

447        Not all members of risk management teams have the same expertise and degree of experience, and they might well have differences of opinion.  However, the Ministry’s local investigations policy does not deal with the issue of dissent.

448        We reviewed a case of use of force that occurred on January 8, 2012, at the Central East Correctional Centre where the health care assessment of the inmate’s injuries did not match the involved correctional officers’ descriptions of how they occurred.  The institution’s security manager, who was a member of the risk management team, noted that bruising on the inmate’s face didn’t appear to jibe with officers’ accounts that the inmate banged his own head on the floor.  In the local investigations report, the manager wrote:

I have received information from the Health Care Manager and Team Lead stating that it would be next to impossible for this person or any other person to receive injuries in these places, without causing injuries to different parts of the head at the same time.

449        The risk management team requested additional follow-up by the security manager and asked for a report from one of the involved nurses.  But the superintendent ultimately signed off on the local investigations report, deeming the force used appropriate.  Our Office discussed this case with the Ministry’s Use of Force Auditor, who conducted a review and identified a number of problem areas.

450        The Ohio Department of Rehabilitation and Correction requires that a Use of Force Committee, composed of various officials, review all incidents of use of force.  Unlike in Ontario, its policy expressly provides that a member of the committee who dissents with the majority can attach his or her findings and conclusions to the committee’s report.  In this manner, any concerns are identified and can form the basis for further review.  

451        The effectiveness of Ontario’s Risk Management Team approach is significantly undermined if dissenting views are not formally recorded and adequately addressed.  The fact that a member of the risk management team has concerns is sufficient to warrant closer scrutiny.  The Ministry should ensure that any conflicting interpretations or questions raised about the facts in an incident of use of force – by health care professionals, members of the risk management team, or other relevant officials – are expressly recorded in the local investigations report.  If a decision is made not to take any further action, the other members of the team and the superintendent should be required to explain in the report why these concerns did not warrant further consideration.

 

Recommendation 43

The Ministry of Community Safety and Correctional Services should amend its Use of Force and related policies to require that any concerns or dissenting views about an incident of use of force that are expressed by health care staff, members of the Risk Management Team or other relevant officials are recorded in the local investigations report, and that if no further action is recommended, the Risk Management Team and superintendent explicitly record why a decision was made not to pursue these matters.

 

Use of Force Auditor

452        The Ministry introduced the Use of Force Auditor position in November 2011.  The Auditor’s responsibilities include reviewing all incident reports in cases of use of force, conducting random reviews of documentation, photographs and video recordings, recommending and providing advice to senior management about specific incidents, improvements to policies and procedures and further investigation.  The Ministry also engaged the Justice Audit Service Team from the Ministry of the Attorney General to assist in development of the audit process, and to conduct spot audits of institutions on request.

453        The Use of Force Auditor conducted informal reviews of three cases prior to formally assuming responsibility for audits.  Between November 2011 and January 26, 2012, 43 more files were reviewed from across the province.  Two were referred to the Correctional Investigation and Security Unit for investigation, and in 17 cases, institutions were directed to reopen or continue local investigations.

454        Some of the issues identified by the Auditor for further investigation included reports that gave conflicting – or suspiciously similar – accounts of the same incident, incomplete or missing local investigations reports, failure to report use of force depicted on video, and lack of follow-up on allegations of use of force.  Other problems were identified, such as:

• Involved operational managers improperly taking part in the Risk Management Team reviewing the incident;

• Reports not meeting minimum standards, including failure to identify all participants, witnesses, injuries and treatment, details of the force used and inmate actions that necessitated force (it should be noted that many of these reports predated the Ministry’s recent training on report writing);

• Photographs of inmate injuries failing to meet required standards, including incomplete, missing, or improperly labelled images;

• Failure to include complete information about police contacts; and

• In one case, unauthorized use of a “spit hood.”  

455        The Auditor provided the relevant regional directors and superintendents with a detailed gap analysis to enable them to address issues with particular files and to improve the quality of files in future.

456        As of January 16, 2013, the Use of Force Auditor had also conducted 60 formal reviews and two spot audits in conjunction with the Justice Audit Service Team, which conducted another spot audit on its own.  The Auditor has continued to identify areas of concern, including the poor quality of occurrence reports, failure of offender incident reports and local investigations reports to meet timelines, photographs not meeting requirements (including missing photographs and improper labelling), incomplete reports, and lack of detailed action plans or recommendations in cases where problems were flagged through local investigation.

457        The Auditor noted one case in April 2012 where there were photos showing correctional staff stepping on an inmate’s bare feet and the leg iron chains fastened around his ankles.  These actions were not described in the institutional reports and had not been flagged by the investigating manager. Witness reports and follow-up photographs were also missing from this file.

458        In another review completed November 15, 2012, the Auditor observed that officers had been permitted to view video of an incident before filing their reports.

459        The Auditor has followed up with institutions on her reviews, and the Ministry indicates there have been improvements.  In an internal Ministry presentation on the use of force audit process from October 3, 2012, it was noted that, overall, completion of files in cases of use of force has improved; collection of required reports is better, police are contacted more consistently, video is increasingly included, photographs are taken more regularly, labelling of digital images has improved, and health care staff are seeing inmates in a timely fashion.

460        In the presentation, the Ministry also pointed to areas that still require improvement, including ensuring that offender incident reports are done on time, occurrence reports meet policy requirements, and regional offices only close files after confirming all required actions have been completed.    

461        As well, it noted some initiatives that are not working according to plan, including:

• Local investigations report timelines are not being met;

• There are problems with the local investigations report form;

• The requirement for superintendents to sign off on all local investigations reports has proven difficult for those managing large institutions; and

• The requirement for misconduct if an inmate refuses to have photos taken has caused problems in some cases.

462        The Ministry said these concerns are being addressed in its recent revisions to the Use of Force policy and local investigations report.

463        The Use of Force Auditor has the potential to be a valuable asset in helping to ensure that cases of excessive use of force or breaches of related policies do not go undetected.  However, there are no criteria to assist the Auditor in choosing incidents for closer examination; cases are generally selected at random.  The arbitrary nature of this selection process could reduce the ability of the Auditor to identify problem cases.

464        One inmate complained to our Office that staff at the Central East Correctional Centre assaulted him on January 8, 2012, fracturing his wrist and cheekbone.  Our review of the case raised questions, and given the serious nature of the inmate’s injuries, we suggested that the Auditor consider it further.  The Auditor did so, and confirmed several problems.  The occurrence reports lacked detail and did not meet minimum reporting standards.  There were inconsistencies in the reports, follow-up photographs were not taken within the required time, and not all of the inmate’s injuries were photographed.  The regional office has since developed an action plan to ensure this institution complies in future with Ministry requirements.  However, this case would likely not have received additional attention if we had not raised it with the Auditor.

465        The Ministry has established checks and balances to protect inmates against excessive use of force.  There are now more stringent requirements for internal investigations conducted by the risk management teams and monitoring by regional officers.  The Auditor is another mechanism to combat inmate abuse and promote proper operational practices.  But consideration should be given to establishing criteria to identify cases that justify more in-depth review, in addition to randomized reviews.

466        Any cases involving serious injury – fractures or other conditions requiring hospital treatment – should warrant closer consideration and be flagged for review by the Auditor.  Similarly, the Auditor should have a means of tracking cases by institution, as well as the correctional staff involved, to identify trends.  A spike in cases involving particular facilities or individuals might justify closer examination.  As well, whenever exceptional force is used, employing techniques not specifically authorized through Ontario Correctional Services College training, the Auditor should review the case as an additional safeguard.

 

Recommendation 44

The Ministry of Community Safety and Correctional Services should ensure criteria are developed to guide the Use of Force Auditor in selecting cases for in-depth review, including consideration of the nature of the injury, the type of physical force used, and trends involving particular institutions and staff members.

 

Conclusion

467        Under section 21 of the Ombudsman Act, I am empowered to reach certain opinions and make recommendations relating to maladministration that my investigations uncover.

468        In this case, it is my view that in order to reduce the risk of excessive use of force, the Ministry must focus on the malignant peer pressures that continue to influence the attitudes and actions of some correctional officers.  Changing an embedded institutional culture, shifting values away from peer solidarity towards greater respect for and awareness of the needs of inmates, will be a daunting task.  I am encouraged by the Ministry’s recent efforts to revise and strengthen its policies, ensure more rigorous investigation of allegations of excessive use of force, and take more decisive steps to address problems with inmate abuse once it is uncovered.  I am also hopeful that new recruitment efforts will yield positive results.  However, it is my opinion that the Ministry’s failure to act sooner and more effectively to develop and implement preventive policies, practices and strategies to insulate inmates from excessive use of force is unreasonable and wrong, in accordance with s. 21(1)(b) and (d) of the Ombudsman Act.    

469        The Ministry has taken some solid initial steps in the right direction, but it will need to follow through.  It has a duty to ensure the welfare of everyone in its correctional institutions, particularly those entrusted to its custody.  It must take all reasonable precautions to protect inmates from abuse by those responsible for their protection.  This includes ensuring vigorous action is taken to eradicate the code of silence that threatens the security of inmates and staff alike.

 

Recommendations

470        Accordingly, I am making the following recommendations under s. 21(3) of the Ombudsman Act.
 

Code of Silence

Recommendation 1

The Deputy Minister, Correctional Services, should issue a direction to all correctional staff advising that the code of silence will not be tolerated and that all those who remain silent in the face of the code or take steps to enforce it will be subject to discipline, up to and including dismissal.

 

Recommendation 2

The Ministry of Community Safety and Correctional Services should amend its draft Code of Conduct, Threats Against Correctional Services Staff and Other Personnel policy, and Workplace Violence Prevention Program to specifically reference the code of silence and the steps available to staff who find themselves victims of its enforcement.

 

Recommendation 3

The Ministry of Community Safety and Correctional Services should ensure that senior Ministry officials are apprised of all allegations of retaliation for breaching the code of silence, and that such cases are expedited and subject to thorough, expeditious and independent investigation.

 

Recommendation 4

The Ministry of Community Safety and Correctional Services should ensure senior Ministry officials at the corporate level have primary responsibility for assisting officers who suffer backlash for breaking the code of silence, and that they focus on removing employees who take retaliatory measures from the institutional system and actively seek suitable alternative positions for their victims when necessary.

 

Recommendation 5

The Ministry of Community Safety and Correctional Services should regularly provide all correctional staff with information about the action it has taken in individual cases to address the code of silence.

 

Recommendation 6

The Ministry of Community Safety and Correctional Services should ensure that all new recruits receive instruction on incidents involving excessive use of force and the code of silence, including information about the disciplinary and criminal consequences of this conduct, and how to seek assistance if they are faced with code of silence pressures.

 

Use of Force Reports

Recommendation 7

The Ministry should implement a policy requiring correctional staff involved in an incident of use of force to remain segregated while preparing their occurrence reports, and to refrain from communicating, directly or indirectly, with each other in regard to the incident until such time as any internal or external investigations of the incident have been completed.

 

Recommendation 8

The Ministry of Community Safety and Correctional Services should review the resources available to correctional staff and ensure that adequate technology and time is provided to allow for the thorough completion of reports relating to incidents of use of force.

 

Recommendation 9

The Ministry of Community Safety and Correctional Services should amend its Report Writing policy to prohibit all correctional staff from conferring with anyone in connection with the preparation of institutional reports, except to respond to requests for clarification during internal management review or external investigation of incidents of use of force.

 

Recommendation 10

The Ministry of Community Safety and Correctional Services should prohibit correctional officers from sharing with their union representatives any information, occurrence reports or other institutional reports relating to incidents of use of force, unless the reports have been submitted to and approved by management, the superintendent has approved the disclosure, and the representative has undertaken in writing not to disclose the information or reports to others.

 

Representation during Use of Force Investigations

Recommendation 11

The Ministry of Community Safety and Correctional Services should direct that no staff member involved in an incident of use of force be permitted to consult with or represent other involved staff in relation to the incident.

 

Recommendation 12

The Ministry of Community Safety and Correctional Services should prohibit the practice of joint representation of correctional officers during local and external investigations of incidents of use of force.

 

Restricting Involved Officer Contact with Inmates and Health Care Staff

Recommendation 13

The Ministry of Community Safety and Correctional Services should revise its policies relating to the use of force to direct that no staff member involved in an incident of use of force should be present when inmates are photographed, questioned by managers, their statements are taken for the accident and injury form, or when they are being assessed by health care personnel.

 

Recommendation 14

The Ministry of Community Safety and Correctional Services should ensure that correctional officers involved in incidents of use of force are not present when health care staff fill out accident and injury reports, and that such officers do not have access to such reports once health care staff have added their observations.

 

Photo and Video Records

Recommendation 15

The Ministry of Community Safety and Correctional Services should ensure that all correctional institutions have the required digital imaging equipment necessary to take accurate and clear images of inmate injuries, and that they train relevant staff in its proper use as well as the requirements of the Digital Images of Inmate Injuries policy.

 

Recommendation 16

The Ministry of Community Safety and Correctional Services should require that images of inmate injuries should be taken prior to any areas of injury being cleansed, as well as after, to ensure accurate images.

 

Recommendation 17

The Ministry of Community Safety and Correctional Services should require that images of inmate clothing and areas of the institution that are damaged or soiled as a result of an incident of use of force are taken and maintained with the file.

 

Recommendation 18

The Ministry of Community Safety and Correctional Services should amend its Digital Images of Inmate Injuries policy to expressly prohibit correctional staff involved in an incident of use of force from taking digital images of the involved inmate’s injuries, or being present when photographs are taken.

 

Recommendation 19

The Ministry of Community Safety and Correctional Services should reinforce the requirement for photographing staff injuries, and require that images of staff injuries be kept with the related use of force file.

 

Recommendation 20

The Ministry of Community Safety and Correctional Services should continue to enhance closed-circuit television capacity in correctional facilities as a priority, and ensure such systems:

- Are placed to allow maximum observation of inmate and correctional staff interactions;

- Allow for clear and accurate recording; and

- Are compatible with equipment used in regional offices and the Correctional Investigation and Security Unit.

 

Recommendation 21

The Ministry of Community Safety and Correctional Services should develop a policy requiring that all correctional facilities retain copies of videos from security monitoring for a consistent and reasonable period of time.

 

Recommendation 22

The Ministry of Community Safety and Correctional Services should install video cameras in vehicles used for inmate transportation.

 

Recommendation 23

The Ministry of Community Safety and Correctional Services should implement a policy requiring hand held video and audio recording equipment be used during all use of force incidents.

 

Recommendation 24

The Ministry of Community Safety and Correctional Services should conduct periodic audits of the closed-circuit television systems in its correctional institutions to ensure they are functioning properly, clearly recording events, appropriately positioned and compatible with equipment used by the Ministry when reviewing and investigating cases of use of force.

 

Recommendation 25

The Ministry of Community Safety and Correctional Services should amend its Report Writing policy and other policies relating to use of force to ensure that correctional staff involved in an incident of use of force are prohibited from viewing related video images, and access to security videos is restricted to those directly involved in investigating the incident.

 

Staff Training

Recommendation 26

The Ministry of Community Safety and Correctional Services should ensure that periodic training on diffusion of hostility is provided to all correctional staff, including management personnel.

 

Recommendation 27

The Ministry of Community Safety and Correctional Services should, as a priority, ensure that instruction on dealing with inmates with mental health and special needs challenges is provided during recruit training and as part of ongoing training for all correctional staff who are responsible for dealing directly with inmates.

 

Recommendation 28

The Ministry of Community Safety and Correctional Services should ensure that correctional staff are regularly trained in authorized defensive tactics, and take steps to create permanent field training positions.

 

Recommendation 29

The Ministry of Community Safety and Correctional Services should establish a system for monitoring the quality and consistency of instruction in defensive tactics delivered to correctional staff by volunteer instructors.

 

Recommendation 30

The Ministry of Community Safety and Correctional Services should survey correctional staff to determine the physical restraint and control techniques actually being used in its institutions in order to focus its training efforts on problem areas.

 

Recommendation 31

The Ministry of Community Safety and Correctional Services should issue a list of standard authorized defensive techniques taught at the Ontario Correctional Services College, as well as prohibited control measures.

 

Recommendation 32

The Ministry of Community Safety and Correctional Services should amend its Use of Force and related policies to expressly direct that use of physical techniques to control inmates that are not specifically approved is restricted to exceptional cases, where they are justified in the circumstances.

 

Recommendation 33

The Ministry of Community Safety and Correctional Services should amend its Report Writing policy to require that any use of physical techniques to control inmates that are not listed as authorized must be expressly identified and the reason for their application fully explained in related institutional reports.

 

Recommendation 34

The Ministry of Community Safety and Correctional Services should ensure that all operational managers, and senior managers within its institutions receive regular training in defensive tactics.

 

Recommendation 35

The Ministry of Community Safety and Correctional Services should ensure that only correctional staff trained, and properly certified, accompany inmates into the community and use oleoresin capsicum spray and batons, and that institutions are provided with a updated list confirming which staff hold current certification in their use.

 

Recommendation 36

The Ministry of Community Safety and Correctional Services should ensure that inspectors responsible for investigating allegations of excessive use of force receive defensive tactics and other training relevant to the use of force in a correctional context.

 

Recommendation 37

The Ministry of Community Safety and Correctional Services should take additional steps to ensure that correctional staff are familiar with all policies and procedures relating to the use of force, including conducting additional training, and requiring that all staff acknowledge that they have read them.

 

Notification relating to criminal charges

Recommendation 38

The Ministry of Community Safety and Correctional Services should immediately clarify the process around the “notification of right to pursue/decline laying of criminal charges” form, and ensure that correctional staff involved in using force on an inmate are not responsible for communicating with the inmate about the option of bringing criminal charges.

 

Contacting the Police

Recommendation 39

The Ministry of Community Safety and Correctional Services should amend its Use of Force and related policies to clarify which situations warrant contacting the police and provide guidance on the details that should be communicated.

 

Recommendation 40

The Ministry of Community Safety and Correctional Services should prohibit management staff associated with a use of force incident from notifying the police about the case.

 

Recommendation 41

The Ministry of Community Safety and Correctional Services should monitor any change to its policy relating to police notification to ensure timely notification of police relating to incidents of use of force.

 

Local Investigation Delays

Recommendation 42

The Ministry of Community Safety and Correctional Services should regularly monitor the number of incidents of use of force that are awaiting local investigation and the length of time institutions are taking to review such cases, and ensure that correctional institutions have the necessary resources to conduct timely and thorough local investigations.

 

Follow up on Risk Management Team Concerns

Recommendation 43

The Ministry of Community Safety and Correctional Services should amend its Use of Force and related policies to require that any concerns or dissenting views about an incident of use of force that are expressed by health care staff, members of the Risk Management Team or other relevant officials are recorded in the local investigations report, and that if no further action is recommended, the Risk Management Team and superintendent explicitly record why a decision was made not to pursue these matters.

 

Use of Force Auditor

Recommendation 44

The Ministry of Community Safety and Correctional Services should ensure criteria are developed to guide the Use of Force Auditor in selecting cases for in-depth review, including consideration of the nature of the injury, the type of physical force used, and trends involving particular institutions and staff members.

 

Follow-Up

Recommendation 45

The Ministry of Community Safety and Correctional Services should report back to my Office in six months’ time on the progress in implementing my recommendations and at six-month intervals thereafter until such time as I am satisfied that adequate steps have been taken to address them.

 

Response

471        The Ministry of Community Safety and Correctional Services was provided with an opportunity to make representations concerning my preliminary findings, conclusion and recommendations.  On May 22, 2013, the Deputy Minister of Correctional Services responded, indicating what steps the Ministry would be undertaking to implement my recommendations.

472        The Deputy Minister observed:

Excessive use of force will not be tolerated in our correctional institutions, and the investigation of all use of force incidents must withstand the strictest scrutiny.  As you noted in your draft report, the Ministry has taken some solid initial steps to strengthen the system and help prevent excessive use of force incidents from happening in the future. […]

Still, more work needs to be done.  The majority of corrections staff conduct themselves responsibly and carry out their duties professionally.  At the same time, it is clear that we must do more to crack the “code of silence” that hampers investigations and intimidates inmates and staff members who come forward. […]

Your report will serve as an excellent road map to build on the measures the Ministry has already taken to strengthen compliance, accountability and oversight in our institutions.

473        He noted the Ministry is committed to ensuring the safety and security of its facilities, staff and those in its custody, and undertook to provide status reports to my Office every six months.

474        The Deputy Minister’s full response is attached at Appendix A of this report.

475        I am satisfied with the Ministry’s response to my report and will continue to monitor its progress in implementing my recommendations.
 

____________________
André Marin
Ombudsman of Ontario

 

Appendices

Appendix A: This link opens in a new tabResponse from the Ministry of Community Safety and Correctional Services (PDF)
Appendix B: This link opens in a new tabCorrectional Institution Counts and Capacities, as of April 8, 2013 (Provided by the Ministry of Community Safety and Correctional Services) (PDF)



[1] Throughout this report, the term “assault” is used in the general sense to describe a non-consensual, unreasonable and excessive application of force against an inmate.  Except where indicated, use of this term does not imply that criminal charges have been laid or a conviction entered.
[2] Names of people whose stories are related in this report have been anonymized in “A-B-C” sequence (Albert, Brian, Colin, etc.) due to concerns about potential reprisal in the correctional system.
[3] Criminal Code, R.S.C. 1985, c. C-46, s. 25.
[4] Ontario, Ministry of Community Safety and Correctional Services, Institutional Services Policy and Procedures Manual, Report Writing (released: 1 March 2012) [Policy and Procedures Manual]. See also, Policy and Procedures Manual, Use of Force (released 18 November 2011).
[5] Ibid.
[6] Ibid.
[7] Supra note 4, Policy and Procedures Manual, Digital Images of Inmate Injuries (released: 18 November 2011).
[8] Since 2007, the Ontario Ombudsman’s Office has offered a This link opens in a new tabtraining course for administrative investigators on a complete cost-recovery basis. It has trained hundreds of people from Ontario agencies and others around the world.
[9] Photos used in this report have been obscured to protect individuals’ privacy as warranted.
[10] Punctuation altered for clarity.
[11] Supra note 4, Policy and Procedures Manual, Use of Force (released 18 November 2011).
[12] [2011] O.J. No. 3147 (Ont. Ct. J.).
[13] Ibid. at para. 59.
[14] Ibid. at para. 70.
[15] Ibid. at para. 74.
[16] Ibid.
[17] R. v. Rosa, [2012] O.J. No. 2035 (Ont. Sup. Ct.).
[18] Bevan v. Ontario, [2010] O.J. No. 2910 (Ont. Sup. Ct.).
[19] Ibid. at para. 43.
[20] These Twitter comments (tweets) are reproduced verbatim – all were written in English. Usernames were included for the originators of the tweets; other names within the tweets were removed. In the first tweet, the photo depicts the building where the Ombudsman’s Office is located.
[21] This quote is from an undated article, which apparently appeared in the London Free Press, and was found in the Ministry’s Inspector Study and Training Program Youth Justice Services materials.
[22] R. v. Bellusci, [2012] S.C.J. No. 44 at para. 24 [Bellusci].
[23] R. v. Sammy, [2004] O.J. No. 598 (Ont. Ct. J.).
[24] OPSEU v. Ontario (Ministry of Community Safety and Correctional Services) (Gillis Grievance), [2008] O.G.S.B.A. No. 84 at paras. 113-14 (ON GSB) [Gillis Grievance].
[25] OPSEU v. Ontario (Ministry of Community Safety and Correctional Services) (Zolnierczyk Grievance), [2011] O.G.S.B.A. No. 18 at para. 67 (ON GSB).
[26] Gillis Grievance, supra note 23 at para. 191.
[27] OPSEU v. Ontario (Ministry of Community Safety and Correctional Services) (Beltrano Grievance), [2008] O.G.S.B.A. No. 143 at para. 125 (ON GSB).
[28] Ontario Correctional Services College, Ministry of Community Safety and Correctional Services, Correctional Officer Report Writing – Risk Management Training (Reference Guide) (Queen’s Printer, 2012).
[29] Schaeffer v. Ontario (Provincial Police), 2011 ONCA 716; leave to appeal granted, Wood v. Schaeffer, [2012] S.C.C.A. No. 6.
[30] This link opens in a new tabBoth reports can be found online.
[31] Bellusci, supra note 21.
[32] Austl., New South Wales, Ombudsman, Managing use of force in prisons: the need for better policy and practice (Special Report to Parliament under s. 31 of the Ombudsman Act 1974) by Bruce Barbour (ISBN 978-1-921884-71-9, NSW Ombudsman, July 2012) at 15.