The Canada Labour Code, R.S.C., 1985, c. L-2,(“the Code”) at Part II, governs federal Public Servants on safety and health issues. This includes federal prison guards, Correctional Officers.
S.128 of the Code provides:
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
Marginal note:No refusal permitted in certain dangerous circumstances
The Code defines “danger” as any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered;
Very important to our discussion is that the Code itself and the operational values underlying the Code make it very easy for employees to claim that a danger exists in their workplace and to refuse to work, without fear of employer reprisal, until the issue has been resolved under the procedures laid out in the Code. In a nutshell, this procedure involves a number of steps, including dialogue and appeals of various decisions, that can permit work refusals over a substantial period – weeks or even months.
Herein, it is true:
a) that the Code says that the danger must involve a serious and imminent threat to health or life.
b) that the so-called danger must not be a hazard that the employee encounters as a normal aspect of their work.
c) that the refusal to work must not cause another persons safety or health to be “directly” endangered
Nevertheless, even if the danger claimed patently does not meet these standards, an employee can go on refusing work and using the s.128 process for quite a while before being required to resume work. During this period the employees right to refuse work will not be questioned or sanctioned.
After all, giving the employee “latitude” in questionable cases of refusal will ensure that employers err in favour of protecting employees.
Consider, though, this scenario:
- For some reason one or more employees develop a dislike for a federal inmate or otherwise decide that this inmate deserves to be controlled or punished.
- They perceive that management is not supporting them or taking required steps to address the inmate’s bad behavior
- So, they use s.128 to refuse to work in association with the inmate because they say he is a danger
- During the s.128 process, since the employees have the right to refuse working with the inmate (irrespective of the credibility of their danger claim) the inmate is kept away from the employees
- This can involve locking up the inmate and limiting his time out of his cell – in effect segregating the inmate without protection of the segregation rules under the Corrections and Conditional Release Act, S.C. 1996, c.20 (“the CCRA”)
So, on the one hand, CCRA principles permit restricting the liberty of prisoners only to the extent that this is necessary for reasons related to safety or security or to safe reintegration of offenders and. accordingly inmates shouldn’t be locked up unless this can be shown necessary,
On the other hand, the Code gives employees the benefit of the doubt in citing a danger, even where the resolution of the matter involves imprisoning a prisoner.
Bottom line: A prisoner can, in effect, be locked up by guards even if this is for unreliable reasons and for a substantial period.
So, surely this can be challenged before the prisoner languishes too long.
The inmate can grieve the situation or he can file a habeas corpus or other judicial review application, contending that he is unlawfully confined more than is necessary to address his risk.
The problems with these remedies are:
a) they take weeks or months, during which the prisoner can remain confined
b) if the prisoner is removed from confinement before it goes to court the matter may well be moot – the Court will not rule on a confinement that does not exist at the time of the hearing.
c) the Courts are very deferential to rights conferred under the Code and to correctional decisions that they consider reasonable – there is always the specter of a bad decision that caused injury, or worse, when the prisoner is let out.
I believe that the only effective way to deal with this kind of scam is to seek a Charter or tort remedy against the employees who abused their authority to do harm to the prisoner.
The object would be to show that employees, with the active or passive collaboration of institutional management, unlawfully imprisoned a prisoner where they knew or ought to have known that this was not required under their duty of custodial care.
I do not say that employees could never be correct in contending that a prisoner would be a particularly serious danger to deal with. Sometimes this could be the case, especially in high security circumstances, dealing with particularly violent offenders.
What I do say is that refusal to work in the particular case of prisoners cannot be allowed to operate with impunity, especially where prisoners are routinely supervised without incident in the security circumstances of an institution.
Correctional officials need to able to effect prisoners’ rights to the least restrictive custody commensurate with their risk to other persons.
If legislative change is necessary ensure this, make it so!
In the meantime there have to be consequences for abuse of custodial duties and H/S protections.