2013 OHSTC 22

Date: 2013-07-31

Case No.: 2011-49

Rendered at: Ottawa

Between:

Patrick Weagant, Appellant

and

Correctional Service of Canada, Respondent

Redacted version

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

Decision: The decision that a danger does not exist is confirmed

Decision rendered by: Mr. Michael McDermott, Appeals Officer

Language of decision: English

For the appellant: Ms. Sheryl Ferguson, Advisor, Union of Canadian Correctional Officers, CSN

For the respondent: Ms. Christine Langill, Counsel, Treasury Board Legal Services, Justice Canada

Reasons

[1] This decision concerns an appeal brought under subsection 129(7) of the Canada Labour Code (the Code) against a finding of the absence of danger made by Health and Safety Officer (HSO) Lewis A. Jenkins. The record indicates that the decision was made known to the parties verbally on August 30, 2011, and confirmed by Mr. Jenkins in his written investigation report and decision issued at Kingston, Ontario, on September 14, 2011. The appellant is Mr. Patrick Weagant and the respondent is Correctional Service of Canada (CSC). A hearing was held in Kingston, Ontario, from January 7 to 11, 2013, with a site visit of the newcomers’ unit at Warkworth Institution on the first morning.

Background

[2] The HSO made his finding following investigation of a work refusal pursuant to subsection 128(1) of the Code exercised on August 25, 2011, by Mr. Weagant. Mr. Weagant is a Correctional Officer 2 (CX 2), most of his career has been spent at Warkworth Institution, Campbellford, Ontario. He was scheduled to work at the Institution’s newcomers’ unit (NCU) on the first day that it was due to function in the newcomer capacity. The appellant’s refusal, exercised prior to the expected arrival of inmates being transferred to Warkworth, initially referred to three issues of concern to him: inadequate staffing of the unit; an undertaking with respect to an egress escape route not completed; and, insufficient training levels for emergency egress and operation of the unit. Mr. Weagant’s appeal application filed on September 6, 2011, limited the scope of his concerns to an appeal “specific to staffing levels of unit”. The staffing level challenged is the employer’s deployment of two correctional officers in the NCU for the day and evening shifts. The appellant claims that this staffing level constitutes a danger to him and that three officers should be the dedicated complement.

[3] Initially this appeal was joined with an appeal filed by CSC pursuant to subsection 146(1) of the Code of a direction issued by the HSO on August 30, 2011, pursuant to subsection 145(1) and concerning a contravention of section 124 of the Code. The substance of the contravention related to the lack of a barrier to ensure safe egress from the NCU courtyard to the Institution’s Programs Building. (A barrier has since been installed and is located outside the NCU unit between it and the Programs Building. [Text redacted]. Notice of withdrawal of this appeal was given by Counsel for the employer at the outset of the hearing on the afternoon of January 7, 2013, and was confirmed in writing the same date to the Registrar of the Occupational Health and Safety Tribunal Canada (Tribunal).

[4] HSO Jenkins records the time of the August 25 refusal as 12:00 p.m. with notice of it received by him at the Labour Program of Human Resources and Social Development Canada at 3:30 p.m. He began his investigation at 6:30 p.m. that evening. While, as will become evident, certain statements and findings reflected in his investigation report are the subject of differences between the parties, the report provides basic information that together with undisputed testimony offers a sketch of the nature and layout of Warkworth Institution and of its operations. Warkworth is classified as a medium security institution for males that according to the extract from the relevant regulations houses inmates assessed by CSC as, “(i) presenting a low to moderate probability of escape and a moderate risk to the safety of the public in the event of escape, or (ii) requiring a moderate degree of supervision and control within the penitentiary”. The Institution is contained within secure boundaries including a perimeter fence. The majority of close to 600 inmates is housed in four main living units capable of accommodating from 80 to around 120 persons, some in double bunked or shared cells. A fifth living unit was described to me as allowing for special needs, such as for aging or mobility impaired inmates, with a maximum occupancy given as 96. The institution applies CSC’s dynamic security model of operations involving direct staff – inmate interaction and designed to promote a safe environment for employees, inmates and the public.

[5] A map of the Institution’s layout was provided at the hearing. [Text redacted]. The staff complement at Warkworth comprises approximately 250 correctional officers plus according to one estimate another 200 employees such as nurses, psychologists, maintenance personnel, instructors and managerial and administrative staff. Parole Officers, Chaplains and other Counsellors attend the Institution. Correctional staff work an average of 40 hours per week although the schedule allows for hours in excess of 40 in any given week providing the average is maintained over time. The shift pattern calls for day, evening and morning shifts with the latter being the overnight shift.

[6] [Text redacted] most designated for double bunk occupancy with a few cells designed as shared accommodation. [Text redacted]. The total inmate occupancy when all cells in the building are fully occupied is 56. [Text redacted]. However, they do not participate in the movement of segregated inmates, a responsibility that resides with the officers posted to the main segregation unit.

[7] During a range patrol NCU inmates, when not confined to their cells or away from the unit, are required or ordered to stand back from the segregation overflow barrier while the officer opens it. A red line marking where inmates should stand behind was in place at the time of the refusal. It was not there during the site visit but notices indicating the same requirement were. The NCU was operated in that capacity from August 25, 2011, until September 2012. [Text redacted]. The plan appears to restore the NCU although that prospect was still two years or more away at the time of the hearing.

[8] The HSO’s report comprises 251 pages with the Investigation Report and Decision included twice, at pages 191 to 195 and again at pages 196 to 200. Under the heading “Facts established by the health and safety officer”, the investigation report confirms the maximum occupancy level of the NCU building noting that at the time of the refusal there were 11 inmates (due) at the NCU and 10 housed in the segregation overflow cells. It also records with respect to the NCU that “The threat risk assessment, job hazard analysis and institutional operating procedures have been done and indicate staffing [text redacted]. The latter appears to be a “typo” that should refer to the morning or overnight shift. The section indicates that correctional officers are trained to CSC core standards and makes reference to their “ability to control the environment of the living unit” with examples of how control can be effected. In the event of a disturbance in the unit the HSO notes that officers may call for assistance and that the “response time from other parts of the institution is within minutes with two officers located and available in seconds”.

[9] As indicated in paragraph two above, the staffing issue identified by the appellant in his appeal application concerns his claim that a complement of [text redacted] correctional officers for the NCU on the day and evening shifts is insufficient and creates a danger as defined in the Code. In effect, the appellant challenges the application of CSC’s staffing policies as established in the Commissioner’s Directive on National Standards for the Deployment of Correctional Officers to the circumstances of the NCU at Warkworth Institution. As such and before addressing the respective parties’ testimony and arguments, it is useful to describe briefly the directive and its relevant appendices.

[10] The directive, also known as CD 004, was issued by the CSC Commissioner on June 8, 2009. Its overall objective is given as the enhancement of public, staff and inmate security through the implementation of national standards for consistent and efficient deployment of correctional officers at various levels of security and types of institution. Goals include the rationalisation and standardisation of management practices relevant to correctional officer deployment with exceptions limited “to those objectively justified as material and warranted.” The directive’s principles require the deployment of correctional officers to “reflect consistent, standard practices across CSC” with approval of exceptions vested in the National Headquarters. Where a formal review of an operational environment is required, a Threat Risk Assessment (TRA) must be included in the process.

[11] The basic end product of CD 004 procedures and processes is the development of site deployment levels that itemize and quantify the application of the standards to each Institution. CD 004, Annex B, details national standards and addresses correctional officer deployment levels for living units in medium security institutions on page 30. It is the standard established for units designed to accommodate fewer than 80 inmates that is most relevant to the issues in this appeal. That standard establishes a dedicated complement of [text redacted] CX 1 and [text redacted] CX 2 for both the day and evening shifts. Revisions to the national standards issued on July 29, 2011, did not change the deployment levels for living units accommodating less than 80 inmates.

[12] The directive recognizes that circumstances may require site deployment levels to be reviewed and provides for the Committee on Correctional Officer Deployment Standards (CCODS) to oversee requests for exception to or amendment of the standards. CD 004 Annex A, included at Exhibit 2 Tab 4, contains the Committee’s terms of reference. The Senior Deputy Commissioner chairs the Committee which includes on a rotational basis two Regional Deputy Commissioners and three Assistant Deputy Commissioners responsible for Institutional Operations. Requests to amend the standards must be sponsored by a CCODS member and supported by a business case and an impact assessment. There is no union representation on the Committee but consultation with the union must be undertaken by the sponsoring member and noted in any submission put before the Committee. Recommendations emanating from CCODS are presented to the Commissioner who is the final decision maker.

Issue

[13] The principal issue in this appeal is whether or not the finding that no danger within the meaning of the Code existed at Warkworth Institution’s NCU on August 25, 2011, the date of his investigation of Mr. Weagant’s work refusal earlier that day, is justified.

Summary of evidence

A) Appellant’s witnesses

[14] The appellant called the following three witnesses in addition to giving his own testimony: Mr. Scott Huizinga, a Correctional Officer 1 (CX 1) at Warkworth and currently employee co-chair of the Workplace Health and Safety Committee referred to henceforward by the acronym used at the Institution as the IJOSH committee; Mr. Mike Ainger, a CX 1 at Fenbrook Institution, Gravenhurst, Ontario; and, Mr. Jordan Schmahl, a CX 1 at Warkworth, IJOSH co-chair at the time of the refusal and currently Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (UCCO-SACC-CSN) Local President.

[15] Mr. Weagant’s testimony in direct largely echoed the narrative rationale for the August 25, 2011, work refusal attached to his Refusal to Work Registration form of the same date. He considered that the planned operation of the NCU with only [text redacted] assigned officers for the day and evening shifts would create a danger as defined in the Code. He cited the layout of the NCU building and maintained there could be times when the corrections officer conducting the range patrol [text redacted]. He also expressed concern that [text redacted] could delay responses to an Officer’s Personal Portable Alarm (PPA) call for assistance and took issue with what he regards as management’s reversal of a TRA that identified a [text redacted] officer dedicated complement for the NCU.

[16] Mr. Huizinga was Mr. Weagant’s representative when the HSO investigated the refusal. Both he and Mr. Schmahl have had close association with the Warkworth IJOSH committee. They spoke to the TRA and its reference to [text redacted] officers for the NCU indicating that they had never seen an updated version for a [text redacted] officer complement. Mr. Huizinga said he had never seen the Job Hazard Analysis (JHA) before the hearing and Mr. Schmahl could not recall when he had first seen it. Their testimony addressed routines and schedules at the Institution and expressed scepticism about the timeliness of responses to PPA calls. Mr. Huizinga stated that he personally and UCCO-SACC-CSN disagreed with the staffing levels set for living units housing less than 80 inmates. Mr. Schmahl described requests that he made through the Region to have a review of staffing issues at Warkworth undertaken under the auspices of the CCODS. He testified that there had been two such requests, the first leading to an inconclusive report and the second for which a report is still pending.

[17] Mr. Ainger is the author of “A critical review of the practice of double bunking within corrections”, a study conducted in 2009 and 2010 which he undertook at the request of UCCO-SACC-CSN and that he described as “a meta-analysis” based on and summarizing published academic work and some government publications rather than his own research. (The full text is included in the HSO’s Report, pages 60 to 75). Mr. Ainger said the study, which he also described as “a positional paper”, was made in response to changes to the Commissioner’s Directive on Inmate Accommodation (CD 550) that he indicated would permit increased levels of double bunking. While the study generally finds that double-bunking has adverse effects on the security of institutions and on the health and safety of correctional staff and inmates, including an increase in institutional violence, it does acknowledge and refer to views to the contrary.

B) Respondent’s witnesses

[18] The respondent called four witnesses: Mr. Mike Velichka, Ottawa based Manager of Deployment Standards; Ms. Janice Sandeson, Assistant Warden Operations at Warkworth; Mr. Thomas Rittwage, a CX 4 Correctional Manager at Warkworth; and Ms. Christine Cairns, Deputy Warden also at Warkworth.

[19] Mr. Velichka is located in the Security Branch at National Headquarters in Ottawa. It became clear during his testimony that he played a significant role in the development of the National Standards for the Deployment of Correctional Officers, first referred to and summarized in paragraphs 10 and 11 above. He testified that, starting in 2004, he led a working group to undertake a comprehensive system wide review leading to the issuing of CD 004 in 2009. He referred to consultation with bargaining agents and specifically noted that there had been three days spent with UCCO-SACC-CSN senior national and regional officers in Montreal. Once standards were established, each institution was asked to refer the applicable results to the local IJOSH committee for comment on health and safety concerns.

[20] Mr. Velichka continues to have responsibilities for implementation of the standards and for updates to the policy which he described as serving to determine the number and rank of correctional officers assigned to various security activities, duties and shifts in minimum, medium and maximum security institutions. He confirmed that the policy applies to all CSC institutions and that managers are required to respect its terms but also indicated that there are avenues for requesting variations to the standards for valid reasons. He testified that CD 004 is currently under review and that consultations have been held with the unions and with local and regional management. Members of the National Occupational Health and Safety Policy Committee have also been involved. Questioned specifically whether UCCO-SACC-CSN representatives had raised a staffing issue for units with fewer than 80 inmates, he replied no.

[21] Ms. Sandeson is Assistant Warden Operations at Warkworth Institution, a position she held at the time of the work refusal. She gave testimony on the usefulness of the NCU for inmate orientation to the routines at Warkworth and the convenient opportunity it offered for health care and other assessments, noting that the assessment process begins before inmates arrive at the Institution. She spoke to consultations having been undertaken with staff, including UCCO-SACC-CSN representatives, on the plans for double-bunking in the unit but acknowledged that consultation does not always lead to agreement. On the NCU officer complement for the day and evening shifts, she maintained that the deployment standard is [text redacted] but, with a prospect of additional funding becoming available, a [text redacted] officer dedicated complement was considered. She also testified on officer training to CSC professional standards, to officer authorities with respect to giving orders to inmates and to the personal protective equipment provided to officers. She explained requirements for incident reporting and testified to there having been no hostage takings or assaults on staff at the NCU when it was in operation.

[22] Mr. Rittwage is a Correctional Manager. He was on duty at the NCU on the day of the work refusal. He testified to there having been no concerns as to inmate behavioural issues or incidents reported by the Regional Transport Team that brought the new arrivals from the Millhaven Assessment Unit. Similarly he said that [text redacted] Warkworth Security and Intelligence after reviewing inmate profiles on the Offender Management System and that Mr. Weagant had not expressed concerns about any specific inmate. He spoke to an assessment model known by the acronym [text redacted] and to officers being trained to be in control of a unit and of having a constant responsibility to observe, understand and assess what is going on so that they can make decisions accordingly. His evidence included references to inmate daily routines, to officer protective equipment, to PPA response times, to provision for a [text redacted] officer [text redacted] and to the out of bounds line in the unit. He also testified to there having been no hostage takings or staff assaults at the NCU.

[23] Ms. Cairns is Deputy Warden at Warkworth, a position she held at the time of the refusal. She testified about inmate assessments detailing the professional resources engaged in the process and emphasizing its continuing nature, commencing as it does on sentencing and carrying on through time served and beyond. Her testimony also explained inmate security classification levels, noting that any inmate walking around the Institution would have a medium security classification. In evidence on establishing the NCU, she said there had been meetings with staff and union partners including UCCO-SACC-CSN, as well as consultation with the inmate committee, resulting in a fair degree of consensus as to the value of newly arriving inmates being centralized. On PPA response times her testimony [text redacted]. Her testimony on the prospect of [text redacted] dedicated officer in the NCU was similar to her colleagues styling it as nice to have but acknowledging it would be above the deployment standard. She noted that additional funding had allowed for increases in Warkworth’s mental health and program capacities and expressed satisfaction that some 40 inmates had obtained a high school diploma the previous year and that a similar achievement was anticipated in the current year.

Argument

A) Appellant’s written submissions

[24] The appellant confirms that the specific issue under appeal is the level of staffing at the Warkworth NCU. It is argued that the current staffing level [text redacted] officers on day and evening shifts is insufficient to cover the duties that need to be performed, an issue that remains regardless of the unit now housing general population inmates and no longer functioning as the NCU. Particular concerns claimed to relate to the staffing level include [text redacted].

[25] [Text redacted]. Similarly, it is argued that the JHA indicates a [text redacted] officer NCU complement. The suggestion by the Assistant Warden Operations made during her testimony that the term “second rounds officer” (pages 3 and 4 of the JHA) indicated [text redacted] officers in the unit rather than [text redacted] officers available for range patrols, is refuted. A reference in the minutes of the IJOSH committee meeting May 18, 2011, to “P. Gottlieb clarified that [text redacted] officers will be located in the NCU [text redacted] is cited in support of this submission with a notation that Mr. Gottlieb was the author of the JHA.

[26] Noting that it did not question the inmate assessment process at the time of his work refusal, the appellant submits that the intake assessment at Warkworth is conducted by a Correctional Manager and not by a psychologist or trained clinician. On double bunking, the respondent’s position, reflected in its testimony, that the matter was not raised by the appellant when he exercised the refusal, is contested with reference made to Mr. Weagant’s narrative account accompanying his refusal to work registration and the HSO’s investigation report (pages 225 and 197, respectively). Both include mention of double bunking. On the issue itself, it is argued that double bunking causes stress for inmates, that space designed for one now holding two will cause tension and that overcrowding increases risk to staff.

[27] It is submitted that the National Directive for the Deployment of Correctional Officers (CD 004) is an employer document that is neither negotiated with nor agreed to by UCCO-SACC-CSN. The appellant argues that when the study leading to the Directive was conducted the NCU was not in operation and its unique needs were not considered. The Transition Unit that was in the building at the time housed different and fewer inmates and had different operating procedures. As such, it is submitted that the standardized policy approach to staffing was developed for the TU and should not be applied to the NCU. Noting that Mr. Velichka who led the deployment study testified that he was not aware of a request for a deployment review at Warkworth, the appellant draws attention to senior management at the Institution indicating that a business case for a [text redacted] officer complement in the NCU was presented to the Region but ultimately denied at the National Headquarters.

[28] The appellant contests the respondent’s claim that the matter under appeal is moot submitting that the staffing issue remains the same with the current use of the unit. [Text redacted].

[29] A list of seven decisions, five from appeals officers, one from the Federal Court and one from the Federal Court of Appeal, is included in support of the appellant’s submissions but no specific arguments are made as to how the jurisprudence established in these decisions may apply in the present appeal. I have reviewed all the cases referred to but have had to make assumptions as to what particular aspects of the decisions the appellant wants me to consider. I note that in two of the cases involving CSC the facts concern not arming officers assigned to escort duties outside of the institutions, an issue not encountered in the current appeal. Also, in another case, the matter alleged was a failure to apply a staffing level established by CSC whereas in this appeal the implementation of the employer’s deployment policy is at issue. Remaining for me are references in the cases named to recognized jurisprudence in decisions such as Verville v. Canada (Service correctionnel), 2004 FC 767, (specifically referred to in the appellant’s reply submission), Martin v. Canada (Attorney General), 2005 FCA 156, and Canada Post Corporation v. Carolyn Pollard, 2008 FCA 305.

B) Respondent’s written submissions

[30] Commencing its submissions with a review of the facts of the case, the respondent notes that the appeal is specific to the NCU staffing levels. It is acknowledged that Warkworth is a medium security institution for male inmates and a description is given of the inmate medium security classification in line with that already stated above. The NCU inmate capacity along with that of the adjacent segregation overflow section is described and it is submitted that, in accordance with the National Deployment Policy for living units housing fewer than 80 inmates, the staffing level is [text redacted] CX 1 for the early morning (night) shift, [text redacted] CX 1 and [text redacted] CX 2 for the day and evening shifts. It is further submitted that testimony given by three senior management witnesses indicated that no additional risk was anticipated for the NCU.

[31] Stating that the appellant was and is still a CX 2 at all relevant times, the respondent argues that in cross-examination he confirmed his awareness of the risks and working conditions set out in the relevant Work Description including the following specific references:

The work is carried out in a controlled access institution with multiple barriers and security controls, which can alternately create a sense of isolation or lack of privacy. There is exposure to unpleasant sights, sounds and odours on a daily basis.
There is direct, daily exposure to inmates who may be agitated, unpredictable or uncooperative or who may attempt to intimidate or resort to violence.

[32] On the law constituting danger, the respondent first cites and quotes both section 128 of the Code, Refusal to work if danger, and the definition of “danger” in subsection 122(1). (The texts of the legislative provisions are included in the analysis section below). The respondent then presents a four point test for the presence of danger taken from paragraph 66 of Justice Dawson’s decision in Canada Post Corporation v. Pollard, 2007 FC 1362, a decision that it submits was affirmed by the Federal Court of Appeal in Pollard (supra). The test cited is essentially consistent with accepted case law related to establishing circumstances that constitute a danger within the meaning of the Code.

[33] Referring to Justice Gauthier’s decision in Verville (supra), paragraphs 36 and 37, the respondent submits that the definition of danger requires proof that the circumstances of a potential condition, hazard or future activity will occur “not as a mere possibility but as a reasonable one”. It is argued that consequently the test for the appeal is a “reasonable possibility” as opposed to a “mere possibility”. In this respect it is further argued that, while “the unpredictability of human behaviour cannot completely rule out the potential for an assault or other incident”, such “does not elevate the concerns raised by Mr. Weagant beyond the speculative threshold of “mere possibility”.” It is claimed that the various security measures taken by CSC and the professional training provided to the officers addresses such speculative risk.

[34] Raising two preliminary issues, the respondent first argues that the appeal is moot and should be dismissed. Citing the Supreme Court decision in Borowski v. Canada (AG), [1989] 1 S.C.R. 342, it is submitted that, as the appellant has acknowledged, the appeal “is specifically regarding the staffing level of the Newcomer’s unit” and the change in the unit’s function from housing newcomers to general population inmates has now rendered the matter academic such that the appeals officer may decline to hear the case. The second preliminary issue identified by the respondent comprises two parts, double bunking and PPA response times, matters it is claimed that were raised for the first time on appeal. It is submitted that, although “these issues were briefly referenced in his (the appellant’s) refusal, these matters were nonetheless not the focus of his refusal nor were they mentioned on his Application to Appeal”. As such, the respondent argues that the appellant should be prevented from relying on them at the hearing.

[35] Citing jurisprudence and referring to oral testimony given by its witnesses, the respondent submits that the relevant time period for the appellant’s appeal is August 25, 2011, the day that the HSO conducted his investigation. Further submitting that the right to refuse in the Code is recognized as an emergency measure not meant to address long standing problems, it is argued that the evidence suggests it was business as usual at Warkworth on the day of the appellant’s refusal and that any “danger that may have existed at the time was normal to the work of a corrections officer”. The respondent gives examples of the work that needed to be carried out on August 25, 2011, in order to receive the planned arrival of 11 inmates destined for the NCU, including the inmate immediate needs and double bunking assessments required by relevant directives and undertaken by the Correctional Manager. It is submitted that these plus assessments of the inmates made prior to their transfer to Warkworth revealed “no exceptional or out of the ordinary risk” existing both at the time of the refusal and of the HSO’s investigation. It is further submitted that the appellant would “have access to information about the inmates and their assessments, which is housed on the Inmates’ Correctional Plans” and that “he confirmed in cross-examination he did not raise concern about any particular inmate”.

[36] Submitting that testimony given by the two Warkworth located witnesses called by the appellant was mainly about their roles in the IJOSH committee and that they lacked specific knowledge of the work refusal at the NCU on August 25, 2011, the respondent argues that this contrasts with the testimony of its witnesses who “spoke directly to the work being done at the NCU in August 2011 and onward”. Whereas, it is argued, Mr. Schmahl and Mr. Huizinga had only worked a handful of times at the NCU, Mr. Rittwage had worked there as the Correctional Manager and Ms. Sandeson had been involved in her role as Assistant Warden Operations in responding to issues at the NCU, including some raised by Mr. Weagant. Similarly, Deputy Warden Cairns had knowledge of NCU issues and Mr. Velichka had confirmed that its staffing levels are compliant with national policy. It is submitted that the specific facts and circumstances at the NCU on August 25, 2011, fail to support the finding of danger.

[37] The respondent argues that the appellant’s “refusal to work was not based on any concern over a particular inmate or specific situation occurring at the NCU on the day of his refusal. Instead, the work refusal is based on Mr. Weagant having felt that the living unit at issue should be staffed with more officers during the day and evening shifts”. It is submitted that the concerns he expressed at the hearing as arising from the staffing issue, [text redacted] are similar to those alleged in C. Byfield and Correctional Service of Canada, Decision no. 03-007, paragraphs 33 and 35 (2003 archived decision of this Tribunal).

[38] With respect to Byfield (supra), the respondent argues that the appeals officer found that a “refusal was not based on anything specifically occurring or expected to occur on or in connection with the living unit at issue. Rather it was based on staffing levels in the unit and the employee’s conviction that her health and safety concerns confirmed a danger. Byfield’s refusal was found to be inconsistent with the definition of danger in the Code and the case law which upholds that the mere existence of one or more hazards, conditions or activities does not automatically confirm the existence of a danger”. The respondent submits that, other than what would already be factored into the normal working conditions of a corrections officer, the appellant’s concerns are hypothetical and speculative.

[39] With respect to the three Officer’s Statement/Observation Reports (OSORs) concerning inmate behaviour entered by the appellant, the respondent notes that they all post-date the work refusal. In any event, it is argued, the circumstances of the reports are examples of common issues encountered by correctional officers when dealing with inmates in general that are not specific to the NCU and that officers are trained to handle them as successful resolution of the incidents demonstrates.

[40] Submitting that a “lack of any serious incidents in the NCU is a testament to ... the effectiveness of preventive security measures at Warkworth”, a list of such measures is made. They include: [text redacted]. In the latter respect the appellant’s personal training record is noted.

[41] With respect to concerns expressed by the appellant about inmate self-harm, the respondent submits that evidence shows that the last inmate self-harm/suicide incident at Warkworth was over three years ago and that it did not involve the NCU, supporting the claim that there are no extraordinary issues or alleged dangers when working in the NCU in comparison with other more populated living units. On PPA response times, the respondent argues that the [text redacted] and that others in addition to designated responders may be available nearby the NCU to provide assistance.

[42] With respect to the TRA for the NCU, the respondent notes that the HSO was given information by the employer, reflected as such in his investigation report, that [text redacted]. It is submitted that it is disingenuous for the appellant to rely on a TRA prepared in the context of anticipated circumstances of inmate population increases that did not materialise. The respondent submits that the case law is clear that a danger must be shown to constitute something that is more than hypothetical and speculative and argues that the appellant has not done so. Asserting that the respondent’s witnesses indicate that there were no hazardous occurrence investigation reports for the NCU at the time of the refusal and none have been received since, it is submitted that evidence required to support a finding that the hazards claimed by the appellant would be more than likely to happen has not been forthcoming.

[43] Citing jurisprudence, notably Canada (AG) v. Lavoie, (1998) FCJ No 1285, paragraph 27, and Canada (AG) v. Fletcher, 2002 FCA 424, paragraph 38, confirming that the Code is not the appropriate vehicle for resolving staffing policy disputes, the respondent submits the matters raised by the appellant involve longstanding staffing issues that, while not without contention, do not form a basis for work refusals under the Code. Attention is drawn to the testimony given by Mr. Velichka and the work undertaken to develop the national deployment standards. It is submitted that there is a process for raising issues and consulting on the content of the standards and that Mr. Velichka confirmed that UCCO-SACC-CSN, the certified bargaining agent for corrections officers, has not raised staffing concerns related to living units accommodating less than 80 inmates in the course of recent consultations. The respondent concludes its submissions by asserting that there was no real danger at the NCU in August 2011 and that “the true nature of this work refusal is an overall disagreement with policy”. It requests that the appeal be dismissed.

C) Appellant’s reply submission

[44] On staffing levels the appellant first submits that the study leading to the adoption of CD 004 was undertaken before the NCU was in operation when the building was occupied by a Transition Unit housing different inmates and with different operating methods. It is further submitted that both a JHA and a TRA for the NCU provide for a [text redacted] officer complement on the day and evening shifts and that no evidence was offered to indicate that the documents had been updated or are no longer valid.

[45] The respondent’s submission that the appeal is now moot is contested. It is argued that the staffing issue remains the same now that the unit houses general population inmates. Also refuted is the respondent’s claim that double bunking and PPA response times were not raised at the time of the appellant’s work refusal. It is submitted that evidence indicates that the unit is the only one at Warkworth to be completely double bunked.

[46] The appellant submits that the staffing levels in the NCU are dangerous and that “the danger became real at the time inmates were to be admitted to the unit”. It is argued that the presence of up to 46 inmates on the range [text redacted] is conducting a range patrol “is a reasonable possibility for danger”. Further, “The risks are not speculative but are [a] reasonable possibility of happening at some time in the future”. Evidence introduced at the hearing showing inmates not locking up when requested by an officer, blocking the view of the officer in the unit control room and not standing behind the red line when a patrol is taking place, are referred to in support of the appellant’s position. It is submitted that this danger is not a normal condition of employment and listing hazards officers could be exposed to in their work description does not make it so.

[47] Referring to inmate assessments the appellant argues, “The evaluation process the employer is using to assess inmate risk and placement is not at the heart of this complaint, the issue is staffing in the area given the number of inmates (up to 46) and the number of officers in the unit when inmates are not contained at cell level”.

[48] On jurisprudence, a specific quote from Verville (supra), paragraph 34, is cited. The words of general application in the paragraph would appear to be, “the injury or illness may not happen immediately upon the exposure, rather it needs to happen before the condition or activity is altered”. The appellant submits that there will be a serious situation in the unit before more staff can be deployed to the area. Reference is made to inconsistent availability of PPA responders. Also relying on Verville, it is argued that “It is not necessarily at all times that current staffing levels will result in injury. The reduced staffing in the area is capable of causing injury to staff at any time, but not every time”.

[49] The appellant concludes, “It is reasonable, given the circumstances present in matter at hand, that at some point in future there will be a situation where an officer is injured in the NCU area as a result of the unpredictable nature of human behavior, specifically the behavior of an inmate or inmates, and that as a result of the current staffing level the officer will be injured”. A finding of danger in the NCU is requested.

Analysis

Preliminary issues

[50] Two preliminary issues raised in the respondent’s submissions, mootness and the inclusion of double bunking and PPA response times in the reasons for refusal, need to be addressed and, although not strictly speaking preliminary in nature, I also deal with two other matters at this point.

[51] On mootness, I am in agreement with the appellant’s position that the staffing issue at the root of the work refusal remains the same. The main change in the function of the living unit is that it now houses general population inmates rather than newcomers. The physical layout of the building remains the same, its inmate capacity at 46 plus 10 in the adjacent segregation overflow section is unchanged and the dedicated officer complement stays at [text redacted] CX 1 plus [text redacted] CX 2 for the day and evening shifts and [text redacted] CX 1 for the morning or night shift. The staffing level of the NCU, not the “newness” of its inmates, was key to the refusal. Paraphrasing part of paragraph 15 of Borowski (supra), the essential ingredients present at the time of the refusal and of the HSO’s investigation are still present and the challenge to the HSO’s finding remains to be resolved. I do not find that the appeal is moot.

[52] Regarding whether or not double bunking and PPA response times were included in the reasons the appellant gave for exercising his work refusal, I find the narrative rationale that Mr. Weagant prepared on August 25, 2011, references both items. He states, for example, that in the event of an incident “Officers would be required to wait for PPA responders who would take considerably more time responding than in the main living units”. Further, “Double bunking in itself is known to cause tension among inmates”. I acknowledge that neither item was included in the Refusal to Work Registration form of the same date but testimony from Ms. Sandeson indicated that its three point capsule of issues of concern was suggested by the HSO as a means of focussing the complaint.

[53] Referencing the items in the context of the refusal does not determine the weight that should be accorded them in deciding the appeal. At this point I confine my comments to double bunking. While I find Mr. Ainger’s positional paper to be well prepared and no doubt a useful contribution to a comprehensive system wide debate, I do not regard this appeal as an inquiry into the merits or demerits of double bunking. Both his paper and documents introduced by the respondent indicate differences of opinion as to the direct causation role double bunking may play in increases in disciplinary infractions, in the presence of inmate on inmate assaults or of inmate on staff assaults in penitentiaries. As cited in Mr. Ainger’s paper, CSC’s own Policy Bulletin terms double bunking “inappropriate as a permanent accommodation measure within the context of good corrections”. What I take from the testimony and exhibits introduced on this subject is confirmation of the intuitive, that double bunking portends increased population in a unit with a consequent and likely increase in work load.

[54] As indicated, there are two further matters that I find appropriate to address at this stage. The first is the respondent’s claim that “an appeal should not be used to challenge high level policy decisions of the CSC”. In support of this position Justice Desjardins’ concurring reasons in Fletcher (supra), paragraph 38, is quoted as follows:

Moreover, neither the safety officer nor the Board, could consider the “minimum staffing policy”. The mechanism provided by the Code calls for a specific fact finding investigation to deal with a specific situation. It is not meant to provide a forum for an analysis of an employer’s policy.

I accept that a specific fact finding investigation is required for a section 128 proceeding but I do not read the citation as totally excluding consideration of the impact of an employer’s policy. In this respect, I find relevant a statement made by the Appeals Officer in Eric V. et al. and Correctional Service of Canada, OHSTC-09-009, paragraph 291, refuting a claim that it is not within his jurisdiction to review the employer’s policies. The translated version reads, “If those policies disregard the COs’ safety or place them at risk, the Tribunal has no choice but to take the actions needed to protect those employees”. While I agree that it not sufficient to justify a refusal simply by claiming that a staffing level is inadequate, I do not accept the fact that the employer’s staffing policy is in question stops the process at the outset.

[55] The other matter I want to address at this point concerns the parties’ respective positions on the relevance of the TRA and the draft JHA prepared in anticipation of the NCU coming into operation. The appellant places much weight on the references in the TRA to [text redacted] officers as the complement on NCU day and evening shifts. Similarly, the references to [text redacted] in the JHA and the fact that its drafter, Mr. Gottlieb, “clarified that [text redacted] officers will be located in the NCU” at the May 18, 2011, IJOSH committee meeting, are cited in support of its position. The appellant argues that no evidence was given that an updated TRA or JHA had been completed and that the latter document remains valid. The respondent’s submission emphasizes that the TRA was prepared “within the context of Bill C-25”, in anticipation of a related increase in inmate population and of additional funding attached to adoption of the legislation that could be used to cover the cost of a third officer for the unit. The respondent notes that the expected inmate population increase did not materialize and further that the TRA states that “current deployment standards identify [text redacted] correctional officers assigned to the newcomer unit”.

[56] When a review of deployment standards is undertaken CD 004 requires that a TRA be prepared and ultimately, if the process continues, it must be provided to the CCODS. I accept that the TRA was prepared in this context and developed in anticipation of additional funding being available to cover the cost of a [text redacted] officer in the NCU. While management witnesses testified that remaining with a [text redacted] officer complement in the unit entailed no increased risk, Assistant Warden Sandeson believed that there was no harm in asking for a [text redacted] officer and Deputy Warden Cairns described such a complement as being above the deployment standard but said it would be nice to have. Despite this support at Warkworth management level, what appears to have been initial favourable interest at the Region was not sustained and as Mr. Velichka the official who would have received any formal proposal at the national level testified the matter did not reach him. I am a little surprised that neither Ms. Sandeson nor Ms. Cairns knew who authored the TRA. Ms. Sandeson believed it was written by Ms. Cairns who testified that she had not written or approved it and had not seen it until the hearing. Ms. Cairns did acknowledge having worked on a business case for [text redacted] officers. A business case was not introduced at the hearing although at times the TRA has the promotional flavour of such a document. In any event I conclude that the references in the TRA to [text redacted] officers for the NCU are not determinative in the appeal.

[57] Briefly on the JHA, it is clearly marked “Draft Document Only” and is dated May 11, 2011, just a week before it was circulated at an IJOSH meeting. The appellant points to the references to a [text redacted] on pages three and four of the document as indications that [text redacted]. In testimony Ms. Sandeson ventured that the term simply reflected a [text redacted] officer complement. There is some ambiguity in the wording which is not altogether removed by the reference on page 10 to “[text redacted] staff are always present on the Unit while inmates are out of their cells”. On balance, I agree with the appellant’s interpretation. That said, testimony from Ms. Sandeson indicates that the JHA was not signed off by the Warden and its status remained that of a draft. In effect it was never validated. From the evidence and testimony, it appears to have been prepared in much the same context of anticipated increased funding and an expected but unrealized approval of a [text redacted] officer as was the case for the TRA. Accordingly, I regard it as having the same limited value in determining the appeal.

The main issue

[58] Turning to the main issue in this appeal, the validity or not of the HSO’s decision, it is useful to cite the relevant provisions of the Code.

Section 128, Refusal to work if danger:

128(1) Subject to this section, an employee may refuse to use or operate a machine or thing, to work in a place or to perform an activity, if the employee while at work has reasonable cause to believe that

  1. a) the use or operation of the machine or thing constitutes a danger to the employee or to another employee;
  2. b) a condition exists in the place that constitutes a danger to the employee; or
  3. c) the performance of the activity constitutes a danger to the employee or to another employee.

(2) An employee may not, under this section, refuse to use or operate a machine or thing, to work in a place or to perform an activity if

  1. a) the refusal puts the life, health or safety of another person directly in danger; or
  2. b) the danger referred to in subsection (1) is a normal condition of employment.

Section 122(1) definition of danger:

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

[59] The parties appear to share common ground on two broad points: that the appeal is specific to the staffing level of the NCU and that a correctional officer’s work entails inherent risks. Beyond these generalities they depart company. The appellant in effect claims that the dedicated staff complement for day and evening shifts at the NCU is insufficient resulting in a level of risk constituting a danger within the meaning of the Code. The respondent submits that the staffing level in the NCU is in accord with national deployment standards and argues that it does not give rise to a danger or entail a level of risk above that factored into the normal working conditions of a correctional officer. These divergent views and the evidence offered respectively in support of them need to be assessed.

[60] In the appellant’s narrative rationale that accompanied his refusal on August 25, 2011, there are fewer references to hazards to his own safety than to his concerns for the well-being of an inmate who may be in distress and whom he says, with only [text redacted] officers in the unit, he cannot assist until another officer arrives. This says something very positive about Mr. Weagant’s approach to his work but, as the respondent bluntly and I believe accurately states, “case law is clear that work refusals can only be invoked by employees, not for alleged injury to other employees or inmates”. As such, I do not find that a delay in reaching an inmate has any direct bearing on the exercise of a refusal under section 128.

[61] References in his narrative account to potential hazards the appellant believed he could be exposed to with the prospect of injury befalling him, were augmented in testimony in support of the submission that “as a result of the current staffing level the officer will be injured”. The respondent argues that this is hypothetical and speculative.

[62] In assessing the appellant’s concerns, I look first to the record noting that, in Martin (supra), paragraph 37, Mr. Justice Rothstein stated that “Tribunals are regularly required to infer from past and present circumstances what is expected to transpire in the future”. There was of course no record for the NCU at the time of the refusal or of the HSO’s investigation since the unit was just opening. However, as noted above, Ms. Cairns referred to an assault on a staff member in the predecessor Transition Unit that took place about a year and a half before the NCU opened. Admittedly, the Unit housed fewer inmates but they were of a different category. Apart from that incident no other such happenings in the building were identified to me. Furthermore, although I have indicated above that I regard aspects of the TRA as having limited application to deciding the appeal, the factual information in section 2.2 of the text cites a decrease in violent incidents at Warkworth generally for 2010-2011, including assaults on and threats to staff.

[63] Turning to measures designed to address risks that both parties agree are inherent to corrections work and that were at hand when the refusal was exercised, I start with the National Standards for the Deployment of Correctional Officers, CD 004. The standards are summarized above but it is worth noting extracts from the Policy Objective in the first paragraph and from the Goals expressed in the second paragraph.

Policy Objective

1. To enhance the security of the public, staff and inmates by implementing national Standards for the efficient deployment of Correctional Officers […] to achieve consistent levels of safety and security while ensuring effective dynamic interaction and interventions with inmates.

Goals

2. To rationalize and standardize CSC management practices related to the deployment of Correctional Officer staff […] that account for the safety and well-being of staff, visitors and inmates.

[…]

Mr. Velichka’s testimony described at some length the content of the directive and the close to five year process through which it was developed. He referred to reviews of deployment practices being made institution by institution, shift by shift, post by post, and security activity by security activity. He confirmed that all CSC institutions were visited and that he was with the team that visited Warkworth, acknowledging that the NCU did not exist at the time of that visit. He said that, although there were variations, it was found that living units housing less than 80 inmates by and large had [text redacted] officer complement for day and evening shifts and that security concerns had not resulted from the staffing level.

[64] The appellant submits that CD 004 is an employer policy that is not negotiated with or agreed to by the UCCO-SACC-CSN. However, Mr. Velichka testified that there had been consultation with the UCCO-SACC-CSN when the policy was being developed and referred specifically to three days of meetings with UCCO-SACC-CSN senior national and regional officers held in Montreal. He also said that in more recent consultations on changes to the directive, UCCO, again at national and senior levels, had not expressed concerns with respect to the [text redacted] officer complement for units housing less than 80 inmates.

[65] The appellant takes particular issue with the initial policy review for CD 004 having taken place at Warkworth when there was no NCU at the Institution submitting that its unique needs were not taken into account. Apart from reference [text redacted] just how these unique needs differ from the needs other living units accommodating fewer than 80 inmates was not elaborated. As the CX 2 work description indicates, barriers are a feature of correctional institutions and the evidence is that segregated inmates would be locked at cell level during a range patrol. In the end, the NCU had and the current swing unit has a maximum capacity for 56 inmates of which the specific NCU section has a capacity for 46. Both figures are well below the 80 occupant threshold in the national standards that take into account the safety of staff, visitors and inmates.

[66] With respect to the inmate assessment process the appellant submits that the intake assessment at Warkworth is “an inmate self-report, and documented by a correctional manager, not a psychologist, or trained clinician”. I find that to be a narrow characterization of the account given by Mr. Rittwage. First, as is evident, he is not the sole source of assessment and I regard his training and experience sufficient for the role he is required to play. The intake assessment he described and that he has performed includes an inmate immediate needs interview which in accordance with CD 705, the Intake Assessment Process, should be carried out within 24 hours of arrival at the Institution. He said that suicide risk and double-bunking compatibility assessments are made at this stage and that information gathered is cross-checked with existing records of assessments made prior to an inmate’s arrival at Warkworth. Those records, containing inmate profiles, are held in the Offender Management System that is accessible to the Institution’s staff including Security and Intelligence Officers (SIOs), Correctional Managers and correctional officers at the CX2 level. Mr. Rittwage said that the information is shared with staff about a week before the newcomers’ arrive and that Mr. Weagant had not raised concerns about the inmates due to arrive on August 25, 2011, but that he did express concern on the day about the NCU staffing level and his safety.

[67] Paragraph 17 of CD 705 reads as follows:

Information collection starts as soon as the offender has been sentence and continues throughout an offender’s sentence.

Deputy Warden Cairns gave a succinct account of continuous inmate assessments undertaken in fulfillment of this statement. She testified that assessments of inmates entering the federal corrections system would have begun when they were still held in provincial detention facilities. They would have continued at the Millhaven Assessment Unit where a thorough review including police, psychological and family information is considered over a period of up to 90 days. The assessments enable inmate correctional plans to be developed indicating needs and risks and establishing classification levels of minimum, medium or maximum security. Evidence demonstrates the nature of these continuing processes. On the security side, the work of SIOs and the completion of OSORs make important contributions, along with inmate mental health assessments. On the corrections side and the aim of equipping inmates for returning to society, program officers, social workers and psychologists play important roles. Somewhere in between dynamic security and its staff-inmate interaction model can serve both security and correctional ends.

[68] I find merit in the respondent’s submissions on the effectiveness of correctional officer training and of the preventive security measures and equipment in evidence at Warkworth. Mr. Weagant’s own training summary serves as a reasonable example of the comprehensive list of courses available and often required. In terms of physical security such subjects as risk management, personal safety, use of force and use of chemical agents appear to be relevant to his own safety and that of colleagues. Knowledge and skills gained from first aid, use of fire-fighting equipment and offender program courses could offer benefits to both staff and inmates. In addition to their training and as the evidence shows, correctional officers have authority to order inmates to move or stand back and at the NCU there is an out-of-bounds demarcation line. An inmate’s failure to respect such instructions can lead to charges and penalties. When on duty the officers [text redacted].

[69] Response times to activated PPAs received much attention at the hearing. Both Mr. Huizinga and Mr. Schmahl echoed Mr. Weagant’s concerns about [text redacted]. The appellant’s written submission elaborates on the concerns referring to the [text redacted] and arguing that assistance from non-designated responders cannot be relied on and at times would not be available. I was not, however, presented with persuasive evidence that PPA calls had not been responded to effectively at Warkworth.

[70] The respondent maintains that the PPA [text redacted]. Mr. Rittwage testified that in his experience responses to PPAs are pretty quick at Warkworth, that non-designated officers and health care staff will respond if free to do so and that Correctional Managers attempt to respond to as many calls as possible. Ms. Sandeson agreed that Correctional Managers would respond to PPA calls.

[71] When taken together I find the measures described above do address to a considerable extent the inherent risks that both parties regard as present in a correctional officer’s work. I accept that the deployment standards set down in CD 004 were developed following a lengthy and thorough national review in the course of which bargaining agents were consulted. I was given no specific evidence to suggest that, contrary to the policy objective and goals, staff safety and well-being were not taken into account in the initial review or in the more recent review during which bargaining agents were also consulted. In the latter review the evidence is that UCCO-SACC-CSN national officers did not raise concerns with the two correctional officer deployment standard for living units accommodating less than 80 inmates.

[72] Similarly, I find the inmate assessment process to be comprehensive and rigorous. The evidence is that assessment begins on sentencing and continues through the period of incarceration and beyond. Testimony from Ms. Cairns indicates that some increased funding resulting from the passage of Bill C-25 had been used to strengthen Warkworth’s psychology and mental health staff, an initiative that can improve existing assessment capacity. In addition, the dynamic security model employed at CSC provides for timely input at all levels. In Verville (supra), again at paragraph 41, it is held that, “the customary meaning of “potential” or “éventuel” hazard or condition does not exclude a hazard or condition, which may or may not happen based on unpredictable human behaviour”. That does not in my view negate the utility and merit of a process that can aid in assessing an inmate’s likely or predictable behaviour.

[73] The respondent argues that the lack of any serious incidents while the NCU was in operation speaks to the effectiveness of preventive measures in place at Warkworth including officer training and officer authorities. I have already referred above to paragraph 37 of Martin (supra) but it is useful to quote Mr. Justice Rothstein’s paragraph in full at this point.

I agree that a finding of danger cannot be based on speculation or hypothesis. However, when attempting to ascertain whether a potential hazard or future activity could reasonably be expected to cause injury before the hazard could be corrected or the activity altered, one is necessarily dealing with the future. Tribunals are regularly required to infer from past and present circumstances what is expected to transpire in the future. The task of the tribunal in such cases is to weigh the evidence to determine whether it is more likely than not that what an applicant is asserting will take place in the future.

The HSO did not have an NCU past to go by. However, in a de novo capacity, I can consider the NCU incident record during the period it was in operation. The three OSORs entered by the appellant do record incidents in the unit but I accept the respondent’s submission that they were not out of the ordinary in a penal institution and that they were diffused without major interventions.

[74] Apart from those cases, the appellant’s witnesses were somewhat hesitant about the NCU experience. Mr. Weagant thought that something radical like a hostage taking had occurred but could not recall if it was when the building was being used as the NCU. Asked about emergency searches in the unit he said that he had not been involved in one. Mr. Huizinga recalled no work refusals or PPA calls during the shifts he worked in the NCU. Mr. Schmahl was not aware of any major disturbances, riots or hostage takings in the unit during the slightly more than the year of its functioning. He was aware of an assault on an officer during that period but did not know if it happened in the NCU. For the respondent Ms. Cairns testified definitively that there were no incidents at the NCU requiring a hazard occurrence investigation, no incidents leading to the injury of an officer and no violence affecting officers. While I am conscious that the absence of past incidents does not rule out a future occurrence, I find it reasonable to take the record into account when considering whether the prospects for such incidents occurring in future are likely or unlikely.

[75] Staying with Martin (supra), I must determine whether it is more likely than not that what the appellant asserts will take place in future. The assertion at issue is that as a result of the NCU staffing level the appellant will be vulnerable to assault and injury as a reasonable possibility, circumstances constituting a danger within the meaning of the Code. Full consideration of the testimony given and the evidence entered at the hearing, as well as the parties’ respective submissions, leads me to conclude that the appellant, to paraphrase the respondent, has not elevated his assertion beyond the speculative. As demonstrated above, the staffing level for living units accommodating fewer than 80 inmates was determined following a comprehensive examination of deployment standards that took account of staff safety. The thorough assessment processes provide profiles of inmates and offer insights as to their behavioural traits. Continuing assessment and the dynamic security model of officer-inmate interaction facilitate professional judgment of the “climate” in the unit allowing for officers to adjust the level of caution in the exercise of their duties. Officers have authority to order inmates to do things, stand in places and to return to cells. They have training and equipment that can be applied if incidents arise. That the appellant’s concerns had not materialized during the time the NCU was in operation, while not determinative, is a reasonable indication of the effectiveness of the measures in place.

[76] Madam Justice Tremblay-Lamer in Martin v. Canada (Attorney General), 2003 FC 1158, paragraph 56, holds that the definition of danger “still encompasses the concept of reasonable expectation which excludes speculative situations”, a finding unchallenged in Verville (supra), paragraph 36, where it is concluded that “the definition only requires that one ascertains in what circumstances it could be expected to cause injury and that it be established that such circumstances will occur in future, not as a mere possibility but as a reasonable one”. Both “mere” and “reasonable” are adjectives of degree or value and the weight of available evidence must be assessed in order to determine where the demarcation between them lies.

[77] The staffing level of [text redacted] correctional officers on the day and evening shifts in medium security living units housing fewer than 80 inmates is a standard determined following a review that included site visits at all CSC institutions. I was not presented with convincing evidence that application of the standard to the NCU building at Warkworth has given rise to a danger within the meaning of the Code. Taken together, in what the evidence and testimony demonstrate to be the unlikely event of the hazardous circumstances claimed by the appellant materializing, I find that the prospect of injury being caused to the appellant in the future to be a mere rather than reasonable possibility.

Decision

[78] For the reasons given above I find that the definition of danger in subsection 122(1) of the Code has not been met in this case and that, pursuant to paragraph 146.1(1)(a), the decision of no danger issued by HSO Jenkins is confirmed. The appeal is dismissed.

Michael McDermott
Appeals Officer

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