Ombudsman report - Investigation into the Ministry of Community Safety and Correctional Services’ response to allegations of excessive use of force against inmates. 

Ombudsman's report: The Code

Investigation launched August 16, 2011.
Report released June 11, 2013.


Case update - Annual Report 2013-2014
Case update - Annual Report 2012-2013
 
 

TABLE OF CONTENTS 

Executive Summary

Investigative Process

Executive Summary

 

1               Prison guards are granted exceptional powers to manage inmates in their custody, including the right to use physical force.  However, they are required to exercise their authority humanely and lawfully.  Using greater force on inmates than is necessary to gain control, applying force with the intent to injure, or continuing to apply force when it is no longer needed is considered excessive and unreasonable.  These are acts of assault[1]

that can trigger workplace discipline and even criminal charges.

 

2               As abhorrent as the crimes for which they are incarcerated in Ontario’s correctional institutions may be, every inmate is entitled to be treated with dignity, respect, and within the confines of the law.  As a society, we all suffer if those tasked with protecting inmates become their abusers.

 

3               In 2010, my Office noticed a disturbing trend.  We found a series of cases where provincial correctional staff appeared to have used excessive force against inmates, many of whom were defenseless and vulnerable.  Equally shocking, we also found instances in which correctional staff attempted to cover up their rogue behaviour with the assistance of co-workers.

 

4               Initially, the Ministry of Community Safety and Correctional Services was dismissive of the cases we had uncovered.  Later, faced with incontrovertible evidence of wrongdoing, the Ministry changed its course and undertook to address this issue by instituting new policies and procedures relating to use of force.  Unfortunately, the Ministry’s progress was slow, and given the seriousness of the matter, I found it necessary to launch a formal investigation.  

 

5               In the past four years, my Office has received more than 350 complaints about unreasonable force.  My investigation focused on the two-year period beginning January 1, 2010.  Since that time, the Ministry has substantiated that the use of force was excessive in close to half of the cases it investigated: 26 of 55.  From January 1, 2010 to January 1, 2013, the Ministry disciplined 108 staff in relation to these incidents, and dismissed five managers and 26 correctional officers.  At the time of writing this report, four former correctional staff members were facing charges and one had been convicted of criminal assault on an inmate. 

 

6               Some cases of excessive force against inmates have been especially egregious.  There was Albert,

[2] who had an extensive history of mental illness and incarceration.  On January 3, 2010, a correctional officer at the Elgin Middlesex Detention Centre kicked Albert in the head, even though Albert was restrained on the ground at the time, under the control of other officers. Correctional staff, including some managers, minimized what had happened, while senior officials didn’t even bother to look at photographs showing Albert’s bloodied and bruised face – his right eye so blackened and swollen it was barely recognizable.  The incident was officially passed off as a case of justified use of force involving no inmate injuries.  It was only after my investigation had started that the Ministry discovered the assault and the attempt to conceal it.

 

7               On September 30, 2010, Brian was so terrified after a correctional officer at the Central East Correctional Centre attacked him – including head-butting, punching, throttling, spitting on him and standing on his neck – that he initially explained he had incurred his injuries in a fall.  After the courts twice raised concerns about Brian’s medical condition, including his loss of consciousness, he was transferred to another institution and monitored for a head injury.  It was only then that the facility’s officials took notice.  They discovered surveillance video showing correctional staff engaged in previously unreported and inappropriate efforts to sanitize the scene and discard blood-soaked evidence.

 

8               Colin, who suffers from mental illness and a brain injury, was incarcerated at the Ottawa-Carleton Detention Centre on October 23, 2010, when a correctional officer repeatedly kicked him in the head and torso.  During the assault, Colin was lying face down on the ground, restrained by other officers, his hands cuffed behind his back and his legs in shackles.  Colin was left with multiple facial lacerations, contusions and abrasions.  His eye was swollen shut.  Given the severity of his injuries, Colin was admitted to hospital and referred to a neurologist.  At first, correctional staff stood solidly behind the officer who had injured Colin, denying anything untoward had happened.  However, once the Ministry sent in its inspectors, stories began to change and falter.  Eventually, four officers recanted their original reports of the incident and reluctantly admitted having witnessed the unprovoked and brutal beating. The perpetrator was dismissed and charged criminally with assault.

 

9               It was a manager who blew the whistle on her colleagues, when she witnessed unlawful force being used against inmate Frank at the Toronto Jail on June 30, 2011.  Frank had a reputation for being unruly and disruptive.  On the pretext of controlling Frank’s hostile behaviour, one correctional officer punched Frank. Another manager who had previously experienced confrontations with Frank took the opportunity to exact his revenge while Frank lay on the ground.  Standing on Frank’s ankles, this manager stomped repeatedly on his legs.  After the incident, correctional staff colluded and contrived to justify the use of force against Frank.  They pressured a manager who had witnessed the assaults to go along with a manufactured account that painted Frank as the aggressor.  The whistleblower stuck by her story that staff had acted without cause or legal authority.  Her version of events was later substantiated by a Ministry investigation.  The correctional officer and manager involved in the incident were dismissed.  Both were charged with criminal assault.  Unfortunately, the manager who told the truth was left to contend with distrustful and openly hostile peers, who condemned her for breaching the jail’s code of silence.

   

10           George was at the Central North Correctional Centre, becoming progressively anxious while awaiting his psychiatric medication, when he became a target for abuse on August 10, 2011.  Correctional staff removed him from his unit and used force on him, saying it was to manage his increasingly erratic behaviour.  George claimed he had been the victim of abuse.  A subsequent Ministry investigation supported George’s story.  The Ministry determined that a correctional officer had punched George in the face three times while he was lying restrained on the floor, in handcuffs and otherwise under control.  The responsible correctional officer was initially dismissed, and later allowed to resign as a result of a settlement.  He was also charged criminally and found guilty of assault.

 

11           Helen was suffering the effects of drug withdrawal at the Sarnia Jail, on August 31, 2011, when a correctional officer attacked her.  She did not disclose what had happened until she was being readied for transfer to another facility.  The Ministry’s investigation into Helen’s complaint confirmed that a correctional officer had pushed her against a wall, pinned her by the neck, and later repeatedly hit her with a closed fist while she was restrained on her bunk. The correctional staff who witnessed the incident omitted the damning details in their reports.  It was not until much later that four officers admitted what they had seen.  In this case, the incentive to hide the truth was particularly powerful.  The culprit was extremely influential in the jail and the local corrections community.  Two officers closely connected to him had also engaged in a campaign of harassment of witnesses to ensure they kept silent and didn’t “rat out” their colleague.  The officer who injured Helen and his two code of silence “enforcers” were dismissed.

 

12           Since 2011, the Ministry has tightened its policies on reporting and investigating incidents of use of force, and increased its training and direction on proper procedures.  The Ministry is also in the process of enhancing video surveillance capacity within its facilities to reduce opportunities for unobserved attacks on inmates.  In addition, the Ministry has become more vigilant in monitoring such incidents and rigorous in penalizing those who abuse their authority.  However, staff violence against inmates and attempts to obscure it have existed in the correctional system for decades.  My investigation found that additional steps are necessary to root out this entrenched, aberrant and unlawful behaviour.

 

13           There is a common theme in cases involving brazen acts of violence against inmates.  Those responsible for assaults are emboldened by their faith in the code of silence – an unwritten social incentive to protect and show solidarity for co-workers, even if it means conspiring to lie, destroy, and falsify records.  Staff who breach this code become victims themselves.  They are labelled “rats,” ostracized, treated as pariahs, subject to direct and covert harassment and threats, and their personal safety is put in jeopardy.

 

14           In this report, I have made 45 recommendations to the Ministry, including that it take more direct and assertive action to address the dysfunctional correctional culture and crack the code of silence.  I have recommended that further steps be taken to reduce opportunities for staff to engage in unlawful use of force, collude to conceal it, tamper with evidence, and engage in intimidation of witnesses.  I have also made recommendations to reinforce the integrity of internal and external investigations, including restricting access to evidence, to prevent information from being improperly shared, directly or indirectly.  In addition, I have suggested measures to further improve video surveillance, including the preservation of video evidence, to clarify authorized defensive techniques, and to expand training for correctional staff in proper defensive tactics, de-escalation of conflicts, and dealing with inmates with mental illness and special needs.

 

15           Correctional institutions are dynamic and often violent environments.  They can be overcrowded, understaffed, and under great stress.  Correctional staff need the ability to exercise force to restrain inmates from harming themselves or others, and to manage the prison population.  However, punching, slapping, kicking, and other physical contact used against an inmate who is under control and does not present a threat is inexcusable and morally repugnant.  It is my hope that through further refinement of its policies, procedures and practices, the Ministry will be able to reduce the risk of inmates being subjected to unreasonable force.  

 

16           I am encouraged by the positive steps the Ministry has already taken, as well as its recent commitment to hire new recruits starting this year.  Injecting new blood into the correctional system should assist in relieving staffing pressures as well as institutional tensions.  I will monitor the Ministry’s implementation of my recommendations closely to ensure the momentum for reform continues, and concrete progress is made.



Investigative Process

 

 

17           My Office has received complaints about correctional staff using excessive and unreasonable force against inmates for many years.  In 1998, one of my predecessors carried out an investigation on this issue, after which the Ministry, then called the Ministry of Correctional Services, undertook to make changes in policies and procedures.

 

18           At present, in addition to reviewing individual complaints, senior staff of my Office and the Ministry of Community Safety and Correctional Services meet on a quarterly basis to discuss complaint trends.  In November 2010, my Office brought a series of incidents involving allegations of excessive use of force to the Ministry’s attention.  Our review of these cases revealed various policy breaches, including apparent attempts on the part of correctional staff to shield questionable conduct from disclosure.

 

19           The Ministry was initially dismissive of our concerns, and adopted a defensive stance, particularly regarding the suggestion that correctional staff may have engaged in cover-ups of situations where excessive force was used.  Still, it agreed to review 13 egregious cases my Office had identified.  The Ministry later acknowledged that policy breaches had occurred, including failure on the part of correctional staff to report some incidents.  The Ministry undertook to address these issues systemically, but its progress was slow and our attempts to obtain updated information about remedial steps met with delay.  In January 2011, the Ministry told us it would be making several improvements to procedures and policies.  Six months later, there appeared to be little movement.  We made numerous attempts to obtain time frames and draft documents relating to these changes, but the Ministry provided us with no details.  Under the circumstances, I decided to launch a formal investigation on my own initiative.

 

20           On August 16, 2011, I advised the Deputy Minister of Correctional Services of my intention to investigate the Ministry’s response to inmate complaints of excessive use of force by correctional staff, including how it conducts investigations and enforces policies relating to the use of force.  On the same day, I made a public announcement about the investigation and invited anyone with relevant information to contact my Office.

 

21           Since commencing this investigation, we have received 147 complaints and submissions about excessive use of force from individuals and stakeholder groups.  We also communicated with organizations familiar with inmate concerns, including Elizabeth Fry Peel-Halton and Elizabeth Fry Toronto – which undertook to network with affiliated organizations provincewide about our investigation, and later provided a summary of concerns – as well as the John Howard Society of Ontario, and the Criminal Lawyers Association.   

 

22           The investigation was assigned to the Special Ombudsman Response Team (SORT), and was conducted by eight investigators under supervision of SORT’s Director, and assisted by Senior Counsel.  The team worked in tandem with the Director of Investigations and five other Ombudsman investigators with expertise in correctional services cases. 

 

23           The team carried out 182 interviews with senior Ministry officials and staff, including assistant deputy ministers, regional directors and deputy regional directors, institution superintendents, deputy superintendents, health care professionals, correctional officers, and security and operational managers.  They also interviewed officials from the Ontario Public Service Employees Union, which represents correctional officers and nursing staff at correctional institutions, the Correctional Investigation and Security Unit’s manager and permanent inspectors, the director and instructors at the Ontario Correctional Services College, and inmates, stakeholders and whistleblowers from within the Ministry.

 

24           SORT investigators also toured several correctional facilities across the province, including Elgin-Middlesex Detention Centre, Kenora Jail, Brockville Jail and Ottawa-Carleton Detention Centre.

 

25           We selected five institutions with historically high complaint volumes, based on our experience, for closer examination: Central East Correctional Centre, Elgin-Middlesex Detention Centre, Ottawa-Carleton Detention Centre, Toronto West Detention Centre and Maplehurst Correctional Complex.  SORT obtained and reviewed 28 banker’s boxes of documents from the Ministry relating to these institutions for the period of January 2010 to August 2011, including video recordings and Information Management Unit statistics. 

 

The Ministry’s Initial Response

 

26           After receiving our notice of intent to investigate, the Ministry assembled a team of 30 staff to review the documentation we requested, including all the files on cases of use of force from January 2010 to August 2011 from the five institutions we identified.

 

27           After its internal review, the Ministry ordered a reassessment of all cases of use of force at all institutions from January 2010 to fall 2012.  Approximately 2,800 cases were reviewed, covering an 18-month period.  As a result of this review, the Ministry asked the Correctional Investigation and Security Unit to reopen and investigate 10 cases.  The Unit later substantiated that excessive force was used in three of these cases, and disciplinary action was taken against the staff involved.  We reviewed the results of these investigations as part of our investigation.

 

28           We also reviewed various policies and procedures, emails, memoranda, training manuals and Correctional Investigation and Security Unit files, and requested additional documents and updates throughout the investigation.

 

29           SORT also reviewed hours of video of incidents of use of force, and closely monitored news media and social media activity relevant to the investigation. 

 

30           The team also did extensive independent research into practices in other Canadian provinces and territories, and in other countries, relating to inmate management and the use of force.  We found that many jurisdictions have similar policies and face similar challenges to Ontario.

 

31           Our Office received excellent co-operation from the Ministry and its various branches.

 

 

 

Use of Force in Ontario’s Correctional Institutions

 

32           The Ministry of Community Safety and Correctional Services is responsible for 29 adult correctional institutions across Ontario.  These are classified as correctional centres, detention centres, correctional complexes, treatment centres and jails.  Collectively, these institutions have a capacity to house 8,857 inmates as well as 489 inmates serving intermittent (i.e., weekend) sentences.  A chart from the Ministry that lists all these facilities, their capacity and the inmate count as of April 8, 2013 can be found at Appendix B.

 

33           As of February 28, 2012, the Ministry employed 3,560 correctional officers, 467 operational managers, 77 deputy superintendents and 29 superintendents.  There are four regional offices responsible for monitoring institutions in their respective areas.

 

34           Correctional centres house inmates who have been convicted of offences and sentenced to periods of incarceration from 60 days to two years less a day. People who are sentenced to terms of two years or more are housed in prisons that are the responsibility of the federal government (Correctional Services Canada), not the Ontario government.

 

35           Detention centres and jails serve as the point of entry into the provincial institutional system.  They are maximum-security facilities that hold people who are awaiting trial, as well as those who have been convicted and sentenced to terms of 60 days or less, and those awaiting transfer to federal or other provincial institutions.  In general, detention centres are larger, more modern facilities, while jails are older, smaller institutions. 

 

36           Correctional complexes have units for people awaiting trial as well as those who have been convicted and sentenced to more than 60 days. 

 

37           Treatment centres provide various professional clinical services for inmates needing treatment for such conditions as mental illness, substance abuse, sexual misconduct and impulse and anger control issues. 

 

38           The Ministry is in the midst of an initiative to modernize its correctional infrastructure that involves building new facilities and closing older ones.

 

 

Reasonable Force

 

39           Prison guards are authorized to use force against inmates under certain circumstances, provided they only use the degree of force necessary for administration or enforcement of the law.

[3]  The regulations under the Ministry of Correctional Services Act specifically refer to the situations in which Ontario’s correctional staff may use force.  They state:

7.  (1)  No employee shall use force against an inmate unless force is required in order to,

(a) enforce discipline and maintain order within the institution;

(b) defend the employee or another employee or inmate from assault;

(c) control a rebellious or disturbed inmate; or

(d) conduct a search. R.R.O. 1990, Reg. 778, s. 7 (1).

(2)  When an employee uses force against an inmate, the amount of force used shall be reasonable and not excessive having regard to the nature of the threat posed by the inmate and all other circumstances of the case. R.R.O. 1990, Reg. 778, s. 7 (2).

 

40           The regulations also require that all incidents of use of force be reported in writing to the superintendent, indicating the nature of the threat posed by the inmate and all other circumstances of the case (s.7(3)). 

 

41           The requirements relating to the use of force are further set out in the Ministry’s Adult Institutions Policy and Procedures Manual, as well as in other policies, directives and institutional standing orders.

 

42           Ministry policy describes “use of force” as any application of physical force against an inmate, expressly excluding routine searches of and application of restraints to compliant inmates.  It emphasizes that force is only to be used as a last resort, after every less intrusive alternative (that is reasonable under the circumstances) has been applied.  Force is also only to be used as a defensive or control measure and to be discontinued at the first possible opportunity.  The application of force beyond what is prescribed or with the wilful intent to cause hurt or mischief is considered excessive, and subject to workplace discipline as well as potential criminal sanctions.

 

43           The use of force against inmates is not uncommon.  From August 2011 to April 2012, there were 766 reported incidents in which correctional staff applied force.  In this investigation, I am concerned with a subset of these incidents – specifically, cases involving excessive and unreasonable use of force, tanta