FPSLREB Decisions

I. Individual grievance referred to adjudication

1 I am seized with three individual grievances referred to adjudication under subsection 209(1)(b) of the Public Service Labour Relations Act (the Act) by Balkar Singh Basra, the grievor in these proceedings. In his first grievance (PSLRB File No. 566-02-2304), Mr. Basra grieves his suspension without pay on June 2, 2008, pending the completion of an investigation into his off-duty conduct, which then resulted in in his conviction for sexual assault on July 11, 2008. The second grievance (PSLRB File No. 566-02-3031) relates to the termination of his employment with the Correctional Service of Canada on June 9, 2009. While he initially sought reinstatement to his position as a remedy for the termination grievance, at the commencement of the hearing on May 28, 2013, his counsel advised me that the grievor no longer sought reinstatement but rather compensation in lieu of reinstatement and compensation for all lost wages, retroactive to June 2, 2008. Finally, in his third grievance (PSLRB File No. 566-02-3271), the grievor contested the employer’s request for the restitution of moneys paid to him “as a result of a mediation”. The grievor withdrew that grievance at the commencement of the first session of hearings and as a result, the Board file is closed.

II. Preliminary matters

2 Given the nature of the allegations for which the grievor stood trial, and given the nature of certain exhibits introduced into evidence in the course of the hearing, a request was made by counsel for the Deputy Head (Correctional Service of Canada (CSC)) to respect the publication ban on the disclosure of the victim’s name imposed by the Provincial Court of British Columbia. Specifically, counsel for the employer requested that I order that the hearing transcripts submitted as Exhibit 2, tabs 1 and 2(a) through and including 2(f), Exhibit 22, and Exhibit 23be sealed.

3 This type of request was discussed by the adjudicator in N. J. v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 129. In that case, the grievor requested a publication ban, a private hearing, the redaction of any documentary evidence that could identify her and a sealing order in the matter of two grievances before the adjudicator. A criminal court had ordered a publication ban on the grievor’s name in a case in which the grievor was also a complainant and a witness to alleged matters. The grievor argued that her personal situation as the alleged victim of a violent sexual assault as well as the existence of a court order banning the publication of her name supported her requests. The employer argued that the open court principle should prevail and that the grievor had not met the requirements of the “Dagenais/Mentuck” test to deviate from the presumption of a public hearing. The adjudicator found that the Canadian Charter of Rights and Freedoms protects the open court principle, which applies to quasi-judicial proceedings, such as those before an adjudicator. The grievor’s request engaged the open court principle, and the Dagenais/Mentuck test applied. The adjudicator found that the grievor’s personal situation did not warrant limiting the open court principle. However, due to the existence of the publication ban issued by the criminal court covering the grievor’s name, there was a public interest in the proper administration of justice that the adjudicator not interfere with the court order by creating a risk of disclosing the grievor’s name via publishing it on the public hearing list and in the decision. The salutary effect of the adjudicator’s order to not name the grievor on the public hearing list or in the decision outweighed its deleterious effects on the public’s right to open and accessible court proceedings. The disclosure of certain documents was ordered, with restrictions, although the request for a private hearing was denied.

4 The identity that counsel for the employer seeks to protect in this case is not that of someone who has a part to play in this hearing but rather the victim of the crime for which the grievor was convicted. The Provincial Court of British Columbia and the Supreme Court of British Columbia saw fit to protect her identity and to order a publication ban on her identity. I agree with the adjudicator in N.J.; were I to allow this hearing to expose her to the risk caused by disclosing her name, by publishing it as part of this decision or by allowing the exhibits containing her identity to be open to the public, doing so would cause a far more deleterious effect than it would benefit the public’s right to open and accessible court proceedings.

5 Consequently, consistent with the Provincial Court of British Columbia and Supreme Court of British Columbia order, the victim’s name will not be published in this decision; nor will she be identified in any manner other than as “the victim.” All requested exhibits will be ordered sealed.

6 Another issue arose related to the admissibility of newspaper clippings, which had been submitted by the employer as part of Exhibit 1, specifically tabs 9D, G, I, J, K, L and M. Counsel for the grievor sought to have them removed from Exhibit 1 on the basis that they had not been properly identified by a witness. Counsel for the employer argued that they had been spoken to generically by Morgan Andreassen and LeAnne Doyle in their testimonies. In the alternative, the employer argued that they were admissible under section 25 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (“the CEA”), as public documents. The clippings had been offered as proof that there was public interest in the grievor’s trial and adjudication and not as proof of their content.

7 Section 25 of the CEA states as follows:

Books and documents

25. Where a book or other document is of so public a nature as to be admissible in evidence on its mere production from the proper custody, and no other Act exists that renders its contents provable by means of a copy, a copy thereof or extract therefrom is admissible in evidence in any court of justice or before a person having, by law or by consent of parties, authority to hear, receive and examine evidence, if it is proved that it is a copy or extract purporting to be certified to be true by the officer to whose custody the original has been entrusted.

8 The grievor argued that the copies provided were not certified; nor did anyone having custody of them before the hearing testify as to the authenticity of the copies submitted under Exhibit 1, tab 9.

9 To refuse to admit excerpts from newspapers based on the requirement that they be certified or because someone who has had custody of them and can testify as to their authenticity has not appeared before me is an extraordinarily formal approach to the adjudication process, which unnecessarily complicates what is intended to be a more informal process. The witnesses for the employer testified that the media covered the grievor’s trial, reinstatement, presence in the workplace and adjudication. These press clippings are clearly evidence of this assertion and are evidence that the media interest was ongoing. That interest was confirmed by the media presence in the room throughout the hearing of these matters.

10 While the copies provided to me were not certified, there is sufficient information to identify their sources and to establish their authenticity. For these reasons, I will accept them as evidence of their existence and not of their veracity.

III. Summary of the evidence

11 In November 2004, the victim contacted the dispatcher for the Surrey, British Columbia, detachment of the Royal Canadian Mounted Police and reported that she had been raped by someone known to her only as “Dion.” She was able to provide the investigating officer with a cell phone number, which proved to be that of Mr. Basra, the grievor. He was not initially cooperative with the investigating officer; he refused to return telephone calls and failed to keep or cancelled an appointment to meet with the investigating officer.

12 Eventually, the investigating officer called the Matsqui Institution (“the institution”), where the grievor was employed as a correctional officer (CX-01). The investigating officer explained that she had been trying to arrange to meet with the grievor and that he would not return her calls or attend scheduled meetings. Shortly after this call, the grievor contacted the investigating officer and told her that his employer had told him to go to her office and to cooperate with her investigation.

13 The grievor was interviewed on November 18, 2004, at the Surrey detachment office. The investigating officer described him as cocky, uncooperative and evasive. He denied knowing the victim and using any name other than his own. A DNA warrant and an order for the production of his cell phone records were secured, following which the grievor was arrested for sexual assault. He was indicted on charges of sexual assault on March 17, 2006.

14 A preliminary inquiry was held in Surrey on April 12, 2007, following which the grievor was committed to stand trial for sexual assault, contrary to section 271 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (CCC). His trial on the indictment was held from June 23, 2008, to June 27, 2008. The grievor was found guilty as charged (see R. v. B.S.B., 2008 BCSC 917). On October 24, 2008, (R v. B.S.B., 2008 BCSC 1526), he was sentenced to two years less one day at the Fraser Regional Correctional Centre or at such other institution as the provincial Corrections Branch deemed appropriate and to probation for a period of three years following his release on several conditions, including that he not make use of any internet social networking programs and online dating sites, that he incur a three-year weapons prohibition under section 110 of the CCC following his release from prison, that he follow an order to submit one or more bodily samples for forensic DNA analysis pursuant to the CCC, and that he comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10,pursuant to subsection 490.012(1) of the CCC,for a period of 20 years.

15 The grievor appealed his conviction to the British Columbia Court of Appeal (BCCA). The BCCArejected his appeal and upheld the conviction (see R. v. Basra, 2009 BCCA 520). The grievor also appealed his sentence and sought interim release pending the decision in his sentencing appeal. He was ordered released on a $10 000 recognizance pending the appeal. On January 22, 2010, the BCCAdismissed his appeal and upheld the sentence imposed by the trial judge (see R. v. B.S.B., 2010 BCCA 40).

16 What transpired in the workplace following the laying of the sexual assault charges and the subsequent indictment has been the subject of many decisions of adjudicators and the Federal Court of Canada. Although initially suspended without pay pending investigation in 2006, the grievor was subsequently ordered reinstated by an adjudicator and returned to the workplace in a position without inmate contact on the grounds that the disciplinary investigation was taking an inordinate amount of time and had become disciplinary in nature, rather than administrative (see Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70). The grievor returned to work in the Admissions and Discharges (A&D) area of the institution in June 2007. Between June 2007 and June 2008, he was the subject of repeated threat risk assessments (TRA) to ensure that his presence in the institution did not pose an unacceptable level of risk to his safety or to that of his co-workers or the institution. The disciplinary investigation was ongoing throughout this period.

17 Much consideration was given as to where the grievor should be located following the adjudicator’s order that he be reinstated. Ms. Doyle, who was at the relevant time Acting Deputy Warden at the institution, was responsible for finding a secure plan for the grievor’s return, which would provide a safe workplace and meaningful work. She had many discussions with the warden, the grievor and his union representative, and the deputy warden of operations. Based on her recommendation, the grievor was placed in an A&D position, processing inmates’ effects as they entered and were released from the institution. This location was chosen as it did not require the grievor to walk through the institution and had limited access by inmates and other staff.

18 Initially, the grievor was to work on a special project, cataloguing a backlog of offender property. He was monitored throughout the assignment by a correctional manager who was to identify any issues and to carry out assessments of its viability every 30 days. The grievor was to work from 0600 to 1400 weekdays, and no overtime was to be worked unless it was preapproved. This provided the structure around where and when he would be in the institution.

19 Ms. Doyle did not support suggestions of placing the grievor on motorized patrol, which would have required him to be alone in a vehicle and would have meant less supervision. Staff expressed concerns directly to her about his presence in the workplace and the threat it posed to their safety in the event that inmates reacted to the presence of a correctional officer who had been charged with sexual assault.

20 On September 6, 2007, a local newspaper contacted the institution, seeking information about the grievor’s reinstatement. The resulting article, which was initially to be published on September 7, 2007, was published on September 8, 2007. The grievor’s bargaining agent asked management at the institution to stop the newspaper from entering the institution as it was concerned that the release of the information in the article (including the grievor’s name and location) into the prison population would pose a threat to his safety. This request was denied as it amounted to censorship, in management’s opinion, and as it was public information that family members and other correctional officers already had. Following this article, some inmates approached staff, particularly Indo-Canadian staff, to find out who the grievor was. In the Ms. Doyle’s opinion, the inmates were not just seeking information; they wanted to be able to identify the grievor. Another article was published on September 11, 2007. Several newspaper articles have appeared over the period since this matter became known in the community (Exhibit1, tab 9).

21 Bobbi Sandhu, Acting Warden at the institution at the time of the search for a position to accommodate the grievor’s reinstatement, agreed with the solution proposed by Ms. Doyle. No correctional officer receives permanent assignment to motorized patrol. This position is one of a rotation. Correctional officers rotate through all positions for their level at the institution. Many times, the motorized patrol position has been used to accommodate health and religious reasons, but given that it requires that a correctional officer carry handcuffs, possibly pepper spray, and a rifle and a handgun in the vehicle, it was not appropriate in the circumstances of the grievor’s criminal charges.

22 As part of the review of possible positions to which the grievor could be assigned, before assigning him to the A&D area, Ms. Sandhu met with him to review his assignment. She found him to have a lackadaisical approach to the meeting and that he had a physical demeanour of someone not concerned by what happened. She described him as having a nonchalant attitude towards the allegations against him.

23 Ms. Sandhu was not comfortable with returning the grievor to the workplace at all. He had tarnished the reputation of correctional officers. The risks to him and to other staff were greatly elevated with his presence at the institution. Sex offenders cannot reside safely there, given the intolerance demonstrated towards such offenders by the prison population. The same intolerance could be demonstrated towards a staff member. The risk to Mr. Basra and other staff as a result of his presence in the workplace was great. The inmates had two reasons to dislike him: he was an alleged sex offender, and he was in authority.

24 According to Ms. Sandhu, institution management believed that it had reason to question the grievor’s commitment to the CSC and to public safety and questioned how trustworthy and loyal an employee he was. All employees of the Correctional Service of Canada require reliability and accountability. He demonstrated a lack of both by causing serious harm to a woman and by continually denying any involvement. It was devastating that a Correctional Service of Canada employee was guilty of perpetrating such violence on an innocent woman.

25 After considering all the options put forward (Exhibit 5) and after taking into consideration the threats to the security of the institution, staff, inmates and the grievor, Warden Glen Brown assigned the grievor to the A&D area. Options at the Kwìkwèxwelhp Healing Village, Ferndale Institution, and the Fraser Valley Institution for Women were all dismissed, given the large number of aboriginals at Kwìkwèxwelhp and Ferndale and because Fraser Valley Institution is a female institution. A TRA was conducted after the media attention, which concluded that it was inappropriate to place the grievor in any of these locations.

26 Despite these fears, while in the A&D area, all reports indicated that the grievor performed well and that there were no significant issues with either staff or inmates during this time. While some expansion of his duties within the area was allowed with occasional inmate contact within the Temporary Detainment Unit, consideration was given to expanding his duties to include regular inmate contact in the Temporary Detainment Unit, but this never came to fruition. The TRAs continued.

27 Throughout the grievor’s assignment in the A&D area, inmates continued their interest in Indo-Canadian correctional officers and in identifying the grievor, his whereabouts and his activities. While on restricted duties, the grievor did not follow the risk management plan and exceeded the scope of his duties within the A&D area.

28 On January 10, 2008, Warden Brown assigned new investigators to complete the disciplinary investigation, which had been convened on April 24, 2006. In order to better understand the subsequent sequence of events and the grievor’s submissions set out later in these reasons, it should be noted that in the meantime, the employer had filed an application for judicial review of the adjudicator’s decision which had partially quashed the 2006 suspension and reinstated the grievor. On May 28, 2008, the Federal Court (Pinard, J.) granted the application, thereby overturning the adjudicator’s decision (2008 FC 606). Following that judgment, the grievor was again suspended on June 2, 2008. On January 22, 2010, the Federal Court of Appeal dismissed the grievor’s appeal and remitted the matter of the 2006 suspension back to the original adjudicator with a set of directions (Basra v. Canada (Attorney General, 2010 FCA 24.). That adjudicator eventually reiterated his initial order (2012 PSLRB 53). This brief outline of the judicial history of the 2006 suspension grievance provides context to the June 2, 2008 suspension that is before me and to the grievor’s argument inviting me to quash the 2008 suspension.

29 The reasons for this suspension were set out in a letter to the grievor from Warden Brown (Exhibit 1, tab 1). In it, the Warden states that he has undertaken a review of the initial decision to suspend the grievor on April 3, 2006, and expresses concerns with the grievor’s presence in the workplace, given that a significant number of inmates in the system had been victimized or had family members victimized and that the presence of a known or alleged sex offender as a staff member could be detrimental to their healing process. In addition, Warden Brown first goes on to state that many inmates had very harsh feelings towards persons charged with or convicted of sexual offences and that there was a risk that they would seek retribution. The grievor’s presence could have impacted the overall sense of vulnerability that the inmates might have had. Second, there was major concern with the grievor’s relationships with other staff and the threat that they might pose to safety within the institutional environment. Finally, there was a significant trust issue in that the alleged offence involved deception in the manner in which it was perpetrated, that the grievor disguised his identity when he committed the offence, that he misled the police by denying that he knew the victim and that they had had sexual intercourse, despite the physical evidence to the contrary, and that he had been under investigation for the alleged offence for months without notifying the employer.

30 Warden Brown expressed concerns over placing the grievor in any correctional officer position, given the resulting impact on the Correctional Service of Canada’s reputation and given how staff work together to meet the needs of inmates and to ensure the safety of the institution and the public. The deception involved in the commission of the offence and in not advising the Warden of the investigation created a situation in which Warden Brown could not trust the grievor. The same concerns initially considered when suspending the grievor in 2006 remained, as did the concern with assigning the grievor to mobile patrol, which is an armoured post.

31 Warden Brown could not be confident that if placed in a position of authority, the grievor would act in the best interests of the Correctional Service of Canada. He had misgivings concerning the grievor’s reliability and integrity and had questions about his use of authority over others. Positions such as Central Command and Control Post require considerable inmate interaction, as does a living-unit control post. Given the population at the institution, Warden Brown had doubts that any inmate would communicate with a correctional officer who was a sex offender. In general, Warden Brown had concerns over the grievor’s ability to respond as a full correctional officer. As a result, the grievor was suspended without pay for the second time.

32 On July 11, 2008, the grievor was convicted of sexual assault and was subsequently sentenced to imprisonment for 2 years less a day, following which he was subject to a 3-year firearm prohibition and was ordered to register as a sex offender for a period of 20 years. The grievor appealed his conviction to the British Columbia Court of Appeal, which unanimously dismissed it.

33 The final disciplinary investigation report, written by Tyson O’Shea, Correctional Manager, Mission Institution, and Mr. Andreassen, Assistant Warden, Intervention at the institution, was received on February 26, 2009, and concluded as follows (Exhibit 1, tab 2, page 000829):

Mr. BASRA’s conduct while off duty discredited the Service by lying to the police, lying to the victim and lying to the Court. Mr. BASRA’s conduct in Court is identified in the R. v. Basra [2008] B.C.J. No. 1319. In addition, there was a significant amount of media attention identifying Mr. BASRA as a Correctional Officer from Matsqui Institution being charged and then subsequently convicted of sexual assault. As such, the Board finds that Mr. BASRA is guilty of misconduct under Standard 2 of the Code of Discipline.

There is no information available to refute Mr. BASRA’s claim that he was unaware of the charge until his suspension without pay. As such, on the balance of probabilities the Board finds that Mr. BASRA did not fail to advise his supervisor before resuming his or her duties of being charged with a criminal offence. The second allegation in the convening order is unfounded.

[Sic throughout]

34 The reason for the further delay delivering the final report was that the investigators waited for disposition on sentencing before concluding their report. A copy was provided to the grievor on March 24, 2009, and a disciplinary hearing was convened for April 14, 2009.

35 Mr. Andreassen testified that during his interview with the grievor, he found the grievor’s demeanor confident and aloof and found him unwilling to discuss the criminal proceedings. The grievor did answer all questions and was not evasive. He admitted that he was aware of the Correctional Service of Canada’s Standards of Professional Conduct (Exhibit 1, tab 6) and Code of Discipline (“the Code”;Exhibit 1, tab 5) and that he had signed a declaration acknowledging his receipt of both documents (Exhibit 1, tab 7).

36 Mr. Andreassen attended the hearings personally and waited for the transcripts of the hearings to ensure the accuracy of the statements he noted at the trial. In particular, he noted a number of comments by the trial judge concerning the grievor’s credibility that were germane to the disciplinary investigation. These transcripts were received in January 2009 and were reviewed as part of his investigation. The disciplinary investigation report was then finished. Throughout the process, the grievor showed no evidence of remorse. The report’s release was further delayed by the grievor’s appeal of the conviction and sentence. The investigators were not provided with a specific time frame to complete their investigation; they were asked to complete it as quickly as possible. No one was willing to comment until the trial and subsequent appeals completed.

37 The investigators did not seek any information on the success of the grievor’s return to work subsequent to the Board’s order, as it was immaterial to the convening order. They did review the grievor’s previous work record and had access to any documents they required. The investigators were not given any direction from the Warden on how to conduct their investigation.

38 Warden Brown described the institution as a medium-security male institution that does not house sex offenders in the general population. The culture is such that if a sex offender is housed in the general population, there is a high risk of the sex offender being assaulted by other offenders. Inmates with a stronger sense of criminal values are intolerant of other inmates who do not fit in.

39 Correctional officers are peace officers under the Corrections and Conditional Release Act, S.C. 1992, c. 20, and the CCC. They have the power to arrest, detain and use force and are obliged to in certain circumstances. The correctional officer job description (Exhibit 1, tab 10) requires an officer to demonstrate pro-social behaviour and to be a role model. The level of trust required in correctional officers is elevated due to the significant authority and responsibility they have as peace officers. They operate with a fair degree of autonomy in their interactions with inmates. Management needs to trust that a correctional officer will interact in a pro-social way with an offender. The entire corrections system is based on this premise.

40 The grievor undertook to abide by the Correctional Service of Canada’s Standards of Professional Conduct and the Code (Exhibit 1, tab 7). The Standards of Professional Conduct clearly states that as employees in the field of corrections, each correctional officer must meet the high standards of honesty and integrity expected of corrections employees (Exhibit 1, tab 6).

41 In Exhibit 1, tab 3, Warden Brown advises the grievor on June 9, 2009, of his decision to terminate the grievor’s employment for cause effective June 2, 2008 (the date of the second suspension). The grievor had irrevocably damaged the bond of trust between an employee and an employer. The investigation concluded that the grievor used deception with the victim, misled the police and sexually assaulted the victim, all of which were behaviours inconsistent with his correctional officer role and with the Correctional Service of Canada’s mission, which is to assist and control inmates. The ability to assist an inmate requires trust. The employer could no longer trust him.

42 By his actions, the grievor demonstrated a lack of respect for victims of sexual assault and for their dignity. He failed to meet his obligations to demonstrate pro-social behaviour and to act as a role model. He did not uphold the rule of law and did not behave ethically by lying and deceiving the police and by not being accountable for his actions. The grievor is not suitable to work as a correctional officer. He has brought disrepute upon the Correctional Service of Canada. The general public has a higher expectation of the standard of conduct of a peace officer. The public looks to the criminal justice system for protection. When a correctional officer strays from this standard, it undermines public confidence in the system. It reflects poorly on the system and on the people working in it. Any positive factors did not outweigh any negative concerns. Terminating the grievor’s employment was the only viable option.

43 Michael Hanly, Assistant Deputy Commissioner, Institutional Operations, Pacific Region, testified for the employer. He stated that the employer and the Canadian public require a huge level of trust in correctional officers. Offenders have to know that they can trust staff to protect their rights and dignity. Fellow correctional officers need to know that each can be trusted to protect the other, as their safety is assured by the response of fellow officers. The public trusts that given the tremendous amount of authority and responsibility that correctional officers have, they will act on the public’s behalf and in the best interests of public safety. Correctional officers are expected to follow the rule of law and to actively encourage offenders to become law-abiding citizens while remaining in secure custody.

44 Sexual offenders are held with particular disdain within the prison environment. They are perceived as being at the lowest end of the social scale; they are undesirables and generally require a degree of protective custody. Often, their life spans are measured in days, sometimes hours, depending on the institution. Inmates who were not sexual offenders have been assaulted when they were thought to be sexual offenders. Being accused is enough, and the level of threat is elevated if an inmate was so charged. Being convicted is the icing on the cake. A correctional officer who has been convicted of sexual assault would be a multiple target to inmates who seek status points for taking out staff members and sexual offenders.

45 This risk would have been reduced had the grievor been placed on mobile patrol; however, he would not then have been fulfilling his role as a correctional officer. In addition, it would have been very difficult to explain why a convicted sexual offender, who was prohibited from owing or using firearms, would be assigned to a position in which he would be equipped with pepper spray, handcuffs, an assault rifle and a 9 mm handgun and then allowed to drive around the perimeter of a prison. Members of the public had asked Mr. Hanly personally why the Correctional Service of Canada would put a convicted sex offender on the job in a position of authority and responsibility within a facility and within the Correctional Service of Canada. The public is not quiet with its opinions.

46 Nowhere in an institution is a sexual offender or an alleged sexual offender safe. Every inmate at the institution has been in a provincial institution at some point. All fresh sentences come from provincial remand. Those serving a federal sentence generally have already done time at a provincial facility. The institution houses many inmates who have done time at Ford Mountain Institution, where the grievor served his sentence.

47 Several employees of the institution testified that they feared for their safety should the grievor return to work there as a correctional officer (Paul Taylor, Joanne Hewitt, Martia Roque, Janelle Marshall and Marni Cohen), while two others testified on his behalf, stating that they did not feel threatened by his presence at the institution (Kelly Dillabough and Sonja Schaufele). While they disagreed as to whether the grievor would pose a threat if he returned to the workplace, they unanimously agreed that his actions and his conviction for sexual assault had embarrassed the Correctional Service of Canada.

48 The only witnesses called on the grievor’s behalf were Ms. Dillabough and Ms. Schaufele.

IV. Summary of the arguments

A. For the Deputy Head

i. The termination

49 Counsel for the deputy head argued that the grievor’s termination was for cause and that the facts justified his termination. The suspension is moot in light of the retroactive termination. In addition, since it was administrative in nature, the Board has no jurisdiction to review it. Finally, the suspension was warranted, given the circumstances.

50 Eleven witnesses were called on behalf of the deputy head; five were the grievor’s colleagues, who all testified that his conduct was an embarrassment to the Correctional Service of Canada and that having him in their midst would pose a threat to their safety in the workplace. They could not work with him in certain areas, and they were afraid for their safety if he were reinstated; they could not trust him. Similarly, other management witnesses testified as to their concerns with his ongoing presence in the workplace and the risk he posed to himself and others, given inmates’ opinion of anyone charged with or convicted of a sexual offense. For this reason, ongoing TRAs were carried out, and the conclusion was that he should be removed from the workplace because of this threat.

51 The two grievor witnesses also agreed that his conduct was an embarrassment to the Correctional Service of Canada. They were also aware of the threat he faced while in the prison, as they had testified on this behalf at his sentence hearing, advocating for a non-custodial sentence or one that would not be served in the general prison population, as his life would be at risk were he placed there. Mr. Hanly corroborated that fear. He testified as to the inmates’ attitudes concerning sexual offenders.

52 The grievor’s behaviour from when he met the victim to his incarceration was deceitful and obstructive. He provided the victim with an alias, which he later denied using when confronted with it by the investigating officer. He denied knowing his victim. He refused to cooperate with the police in their investigation. Mr. Hanly also testified that this behaviour destroyed the trust that is essential between the employer and a correctional officer.

53 Exhibit 12, the letter of offer signed by the grievor, clearly states that as a correctional officer, he was a peace officer. A peace officer is expected to abide by and cooperate with the law, and yet the grievor was arrested in 2004 and charged with sexual assault. Corporal Chahill, as she now is, the investigating officer, described her attempts to contact him and his refusal to return her calls. She also described the deception concerning his use of an alias and his denial that he ever met or knew the victim or anyone by that first name. Rather than cooperate with the police by providing a DNA sample, he refused to, until a DNA warrant was secured. He did not even advise the employer that any of this was going on. The fact that he continued to work as a correctional officer for 18 months without telling the employer that he was charged, is telling. The British Columbia Court of Appeal commented on this lack of truthfulness in R. v. Basra, 2009 BCCA 520, at para 12 and 20.

54 The Code (Exhibit 1, tab 5, paragraph 6) contradicts the grievor’s argument that he was not obligated to advise the employer of the ongoing investigation since he had not been charged. The Code is clear that off-duty conduct must reflect positively on the Correctional Service of Canada. The grievor knew he was under investigation and did not report being charged on March 17, 2006. The employer was notified by letter dated March 24, 2006, from the Crown counsel (Exhibit 10) that the grievor had been charged with sexual assault, contrary to section 271 of the CCC.

55 The grievor was subsequently suspended without pay in April 2006, pending the completion of a disciplinary investigation. He was reinstated as a result of an adjudicator’s decision in 2007, which was later quashed by the Federal Court on May 21, 2008. Following the adjudicator’s decision in 2007, the grievor was reinstated to a position without inmate contact within the A&D area at the institution on September 4, 2007.

56 The TRAs were completed from the date of the grievor’s reinstatement to the date of his suspension without pay pending the completion of a disciplinary investigation on June 2, 2008, following the Federal Court decision on May 21, 2008, overruling the adjudicator. According to the evidence of Warden Brown, the decision to again suspend the grievor was precipitated by the May 21, 2008, Federal Court decision, the ongoing media attention, co-workers asking to be removed from his area, his lack of compliance with the scope of duties assigned to him, inmates asking other Indo-Canadian employees questions about their identities, and the other concerns identified in the TRAs conducted while he was in the workplace (Exhibits 5, 6, 7 and 9). From the employer’s point of view, they were back at square one, and a suspension was required for the grievor’s safety and that of the institution.

57 In June 2008, new investigators were appointed to complete the disciplinary investigation (Exhibit 11). Their report was submitted on February 26, 2009 (Exhibit 1, tab 2), and was provided to the grievor. At page 838, the report noted the ongoing media attention that the matter had attracted. The disciplinary hearing was held on April 14, 2009.

58 In the intervening period, the grievor was convicted on July 11, 2008, of sexual assault, contrary to section 271 of the CCC. He was sentenced on November 7, 2008, and he subsequently appealed his conviction to the British Columbia Court of Appeal. He was released on a recognizance on November 21, 2008, pending his appeal. The Court dismissed his appeal on November 27, 2009, following which the grievor commenced serving his sentence (Exhibit 2, tab 5).

59 The Supreme Court of British Columbia commented as follows (in 2008 BCSC 917) on the grievor’s deceit in the commission of the crime and during the police investigation (Exhibit 2, tab 3):

…

[45] I must say that I have great difficulty believing anything the accused said in his testimony. He lied when he told Cst. Chahil that he did not know Ka.; he lied when he said he did not tell Ka. that his name was “Dion”; he lied when he told Ka. that he had used protection during sexual intercourse with her; he lied when he told the complainant that he was half French; and, he lied when he told the complainant that she had taken off her clothes because she had vomited on them. In addition to all of this, I find his description of how he was seduced by Ka. to be simply ludicrous, given the circumstances.

…

[70] In this case, it is not just that I disbelieve the accused’s statement to Cst. Chahil that he did not know the complainant. There is independent evidence that his statement to Cst. Chahil was a fabrication. There is independent DNA evidence found in Ka.’s vagina that indicates that he had sexual intercourse with Ka. There is also independent evidence from Me. and Jo. that the accused did know Ka. Based on this evidence, the accused’s statement to Cst. Chahil must have been a fabrication. I, therefore, infer that the fabricated story the accused told Cst. Chahil is inculpatory.

…

[71] From the evidence that was adduced at trial, there is an irresistible inference that the injuries that were found on the complainant .. . were caused by the accused when the complainant was in his company. The scope of these injuries, especially those on her thighs, is certainly inconsistent with consent to sexual intercourse by the complainant.

…

[72] There is evidence that the complainant vomited all the way from the night club to the accused’s apartment; there is evidence that she vomited outside of the bedroom of the accused; and, there is evidence that when the complainant awoke she found that she had vomited beside the accused’s bed. Notwithstanding this evidence, the accused, in an effort to explain that the complainant had indeed consented to sexual intercourse, testified that the complainant kissed him passionately after her heavy vomiting session. Based on the independent evidence that the complainant had vomited, and human experience and logic, I have great difficulty believing this evidence of the accused.

…

[87] As I stated above, I had great difficulty believing anything that the accused said in his testimony. The evidence shows that he lied repeatedly and his version of the events on the night of the offence is not plausible given the circumstances.

…

[98] … The accused asserts that the complainant initiated sexual intercourse and her actions led him to believe that she was consenting. However, there is no plausible evidence to support his assertion, rather the evidence indicates that the accused could not have honestly believed that Ka.
consented….

…

60 The British Columbia Court of Appeal (in 2009 BCCA 520) also commented on the grievor’s deceit as follows (Exhibit 2, tab 5, paragraph 20):

[20] The judge used the appellant’s denial that he knew the complainant as a reason for rejecting his testimony, and because the judge found the denial to be a deliberate fabrication, he drew an inference of guilt. The appellant’s chief complaint in this regard is the judge’s failure to bring the appellant’s innocent explanation into the analysis of credibility. As mentioned, the explanation for the denial was the appellant’s concern that, as acorrections officer, his position would be in jeopardy if his employer came to know that he was under investigation by the police. He said he denied knowing the complainant in the hope of deflecting the attention of the police and thereby avoid a potential problem at work.

61 The grievor’s lack of remorse for his actions was mentioned as follows by the Supreme Court of British Columbia in sentencing him (2008 BCSC 1526; Exhibit 2, tab 4, paragraphs 18 and 44):

…

[18] [Mr. Basra] is 30 years old with no previous convictions. As a result of this conviction he lost his employment as a prison guard and his hopes of becoming a police officer came to a grinding halt. His attitude toward this offence was described by the probation officer who prepared his pre-sentence report, which states:

[Balkar] feels his version of this offence differs from that illustrated in the police report and by the victim as many details and allegations are false. [Balkar] reported the sex between himself and the victim was consensual in nature and not criminal. He portrayed the sex as “two adults consenting” at that time. He indicated he was not the aggressor and believed the victim was the aggressive individual who wanted to engage in the sexual activity. Although [Balkar] acknowledged that the victim has felt victimized in this situation, he still lacks insight into his behaviours.

… it was difficult to assess his attitude surrounding the sexual assault toward the victim due to his denial despite the findings of the courts. [Balkar] continues to deny his conviction and claims that he wants to appeal this decision.

…

[44] [Mr. Basra] has not shown any remorse for this offence or any compassion or empathy for the victim… .

…

62 In making its decision to terminate the grievor, the employer reviewed all these court decisions and considered the courts’ comments. In addition, the employer considered both mitigating and aggravating factors. The employer determined that the evasion, deceit and lack of recognition of what he had done demonstrated an ongoing pattern of denial and deceit, which was inconsistent with his role as a correctional officer and with the bond of trust required between the employer and its employees. The grievor led no evidence, whether documentary or through testimony, to contradict this, and thus, the adjudicator should draw a negative inference.

63 The employer’s determination is noted in the June 9, 2009, termination letter (Exhibit 1, tab 3). The grievor’s actions irrevocably damaged the employer’s trust and were inconsistent with the powers of a peace officer, as outlined in Exhibit 16. He cannot model the pro-social behaviour required of a correctional officer. In the prison environment, correctional officers rely on each other for their safety and the safety of others and the institution. Trust is key to that relationship, and the grievor has demonstrated through his actions that he is not worthy of their trust. His ability to operate with other correctional officers as a team has been compromised by this lack of trust. There are operational concerns for his safety and that of his co-workers should he be present in the institution, given inmates’ attitude towards sexual offenders.

64 The cases of Lapostolle v. Deputy Head (Correctional Service of Canada), 2011 PSLRB 138, at para 71 and 91, Richer v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 10, at para 119 and 120, Simoneau v. Treasury Board (Solicitor General of Canada - Correctional Service), 2003 PSSRB 57, at para 58 to 60, Boisvert v. Treasury Board (Solicitor General of Canada - Correctional Service) PSSRB File No. 166-02-25435 and 26200 (19970410), and McKenzie v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 26, at para 75 to 80, all speak to the critical element of trust in the employer-employee relationship between the Correctional Service of Canada and its correctional officers. The importance of the employer employee trust relationship is also recognized in Flewwelling v. Canada (1985), 24 D.L.R. (4th) 274 (C.A.),

65 Warden Brown spoke to the violence of the offence, coupled with the ongoing deception and manipulation perpetrated by the grievor. The grievor’s own witnesses testified as to their trust in him and the need for trust between correctional officers, and yet they knew only what he had told them. The right of silence does not extend to deceit. In the Simoneau decision, at paragraphs 61 and 62, the adjudicator considered the ongoing deceit of the grievor in that case as follows:

[61] It is clear that Mr. Simoneau’s attitude during the arrest tarnished the reputation of Correctional Service Canada … By using his status as a correctional officer to attempt to extricate himself from this situation, he tarnished the reputation of all correctional officers … .

[62] The seriousness of the actions of which he has been accused, added to the loss of credibility resulting from the successive changes in his version of the facts, have irreparably breached the trust that must exist between Correctional Service Canada and Mr. Simoneau. I am in agreement with Deputy Chairperson Falardeau-Ramsay when she stated, in Courchesne (supra):

[Translation]

The mere existence of serious doubt about an employee’s integrity in a penal environment is sufficient to prevent his/her reinstatement since trust is such an important factor when the lives and safety of individuals are in danger.

66 Given the facts of this situation, which are that the grievor committed a violent sexual assault and lied to the police, the adjudcator should apply the principles set out as follows in Yarmolinsky v. Canada Customs and Revenue Agency, 2005 PSSRB 6, at para 137 and 143:

[137] In my opinion, the sexual assault alone was reason enough for the employer to terminate the grievor’s employment. But when coupled with the grievor’s dishonesty, by lying to Detective Constable Stitt, and not immediately informing his employer, this justifies it even more.

…

[143] The employer has lost all trust in the grievor. The employer justifiably was left to wonder whether this was the first time that he had assaulted a person while conducting CCRA business or whether it was the first time that a person actually filed a complaint. One can also wonder what type of audit would have been filed had Ms. “X” complied with his sexual advances… These are all valid concerns. Ms. Emmett stated that the CCRA does not have a crystal ball to look into the future to ascertain that he will not commit such an act again.

67 The letter of termination (Exhibit 1, tab 3) also refers to the impact of the grievor’s actions on the employer’s reputation. The ongoing media attention is evidence of the damage to the employer’s reputation. The Correctional Service of Canada’s mandate is to act in the public interest, and it is contrary to this mandate to have a criminal working as a correctional officer, in charge of inmates. The evidence of the grievor’s colleagues, who testified, including his witnesses, was that they were embarrassed by the situation.

68 The grievor’s bargaining agent asked the employer to intervene and ban newspapers carrying the news of his reinstatement to the workplace in September 2007. The employer determined this was not a viable option, as the inmates were entitled to their newspapers, and the repercussions of removing such a right were not in the institution’s best interests. The reality is that whether or not the newspapers were allowed into the institution, the inmates had access to the information through television, radio, the library, phone calls and visits.

69 The employer does not require empirical evidence of the damage done to its reputation (see Tobin v. Treasury Board (Correctional Service of Canada), 2011 PSLRB 76, at para 105 to 109). Common sense and measured judgement should be exercised when considering the impact of the grievor’s activities on the employer’s reputation.

70 The grievor’s performance records indicate that his performance was satisfactory. The fact that he received a commendation in 2002 (Exhibit 19) for taking actions that were required of him as a peace officer, pursuant to the Commissioner’s Directive on Peace Officer Designations (Exhibit 16), offers little mitigation. In Tobin,at para 163, the Board stated that good performance offers little mitigation.

71 There are significant aggravating factors to be considered in the circumstances of this case: the grievor’s deceit and evasion, the loss of trust, the seriousness of the offence, the lack of remorse, and the adverse inference to be drawn from his failure to testify. In Baptiste v. Deputy Head (Correctional Service of Canada), 2011 PSLRB 127, at para 289, the adjudicator commented as follows on the impact of the failure of the grievor in that case to testify:

289 I have referred several times in my reasons to the fact that Ms. Baptiste did not testify at the hearing. Therefore, I am left to assess the employer’s decision to terminate her employment without the benefit of any first-hand explanation from her. Having found that she engaged in serious professional misconduct when she administered incorrect medication, failed to report or acknowledge the situation, and inappropriately altered the NCDR to rectify those mistakes, I believe that it fell on the grievor to provide a satisfactory explanation to me. Her failure to do so must lead me to draw unfavourable inferences not only about the facts on which she could have brought her particular perspective but also on whether the decision to terminate her employment was reasonable in the circumstances.

72 The grievor was sentenced to be incarcerated for two years less a day, following which he was to serve three years of probation, during which he would be subject to a firearms prohibition and would be required to provide a DNA sample, to register as a sex offender, and to remain on the sex offender list for a period of 20 years. This speaks to the seriousness and violence of the offence for which he was convicted. Consistent with Tobin v. Canada (Attorney General), 2009 FCA 254, at para 65 and 66, these significant aggravating factors are not outweighed by a paper award for doing his job.

ii. The 2008 suspension without pay:

73 As to the suspension without pay imposed on June 2, 2008, the matter is moot as the termination was backdated to that date. Even if it had not been backdated, the suspension was an administrative action taken by the employer, which was reasonable and warranted in the circumstances. The cases of Brazeau v. Deputy Head (Department of Public Works and Government Services), 2008 PSLRB 62, Shaver v. Deputy Head (Department of Human Resources and Skills Development), 2011 PSLRB 43, and Bahniuk v. Canada Revenue Agency, 2012 PSLRB 107, all speak to the issue of mootness. In the Brazeau decision, the reasons for the suspension without pay were more than just the grievor’s conviction. The additional factor of the conviction, which did not exist at the time the suspension was imposed, did not preclude backdating the termination (see paragraphs 145 through 154 of that decision).

74 In this case, the employer always considered the grievor a risk. He was not reinstated because this opinion had changed; the employer complied with the adjudicator’s order to reinstate him not because it accepted that there were no reasons for the suspension. Clearly, the employer disagreed with the adjudicator’s ruling, as it filed for judicial review of the decision. Once the Federal Court issued its decision overturning the reinstatement order in May 2008, the employer once again suspended the grievor. The termination was based in part on the facts that existed in June 2008 and that gave rise to the suspension without pay. The relevant time frame for determining mootness is the time of the hearing (see Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342). To determine this, one must determine whether, as noted in Borowski, the “tangible and concrete dispute” still exists.

75 Adjudicators consistently apply the principle of mootness, as outlined in LeBoeuf v. Treasury Board (Department of Transportation) and Public Service Alliance of Canada, 2007 PSLRB 27, in which the adjudicator applied the Borowski principle. The only live issue at the time of this hearing was the termination. In the alternative, even if the suspension in this matter was not moot, it was administrative, and thus the adjudicator has no jurisdiction.

76 The facts that gave rise to the grievor’s suspension in June 2008 were different from those that existed when he was suspended initially in 2006. There was a risk to the institution, staff had expressed concerns about his presence and the situation was garnering substantial media attention. He was suspended to mitigate this risk. It was reasonable for the employer to take the action it took (see Boisvert).

77 Even if the adjudicator finds a live issue surrounding the suspension and even if it determines that the suspension was disciplinary and not administrative, the employer still had authority to terminate the grievor as of the date of the suspension. The employer can act on its concerns. It is not required to wait; an acknowledgement of risk is sufficient (see Lapostolle, at para 88 and 93, Richer, at para 119 and 125, and Yarmolinsky,at para 143 and 153). Warden Brown, whose experience with corrections began in 1978, saw the grievor’s presence in the workplace as a risk. The adjudicator should take notice of the witnesses’ experience when considering the existence of the risk.

78 To allow the grievor to remain in the workplace would fly in the face of the Correctional Service of Canada’s reputation (see Dionne v. Treasury Board (Solicitor General of Canada - Correctional Service), 2003 PSSRB 69, at para 39, 40, 42, 43, 44 and 48).

79 All the Millhaven factors for assessing the impact of outside conduct on the employment relationship have been met in this case (see Millhaven Fibres Ltd., Millhaven Works v. Oil, Chemical and Atomic Workers International Union, Local 9-670 (1967), 1(A) Union-Management Cases 3-28). The employer has the authority under the Global Agreement (Exhibit 3, tab 39) to suspend a correctional officer without pay. The employer complied with Exhibit 3, tab 41, the CSC’s Guidelines for Discipline, which required an ongoing assessment of the suspension, using the Larsen criteria (see Larson v. Treasury Board (Solicitor General Canada – Correctional Service), 2002 PSSRB 9). The situation before the adjudicator is different from that which was before it previously. The grievor was a convicted felon within 30 days of his suspension.

80 The Deputy Head seeks the dismissal of the grievances. Even if the dismissal is overturned, the only issue to be determined is the amount of compensation to which the grievor may be entitled. This requires evidence of mitigation and particulars of incomes. If the suspension is not moot, there is nothing owing. Any delay is attributable to the grievor’s conduct. Any compensation would be limited to one month, less anything he earned. Even if the suspension does not stand, the conviction does, and so should the termination (see Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63).

B. For the grievor

81 The grievor’s suspension without pay and termination were both disciplinary. Therefore, the onus was on the employer to establish just cause. In addition, the employer had to show that his 12-month suspension without pay and subsequent termination were not excessive in the circumstances (see Basra, 2010 FCA 24, at para 29, Basra v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 131, at para 11, and Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53, at para 47 and 48).

82 The grievor was originally suspended without pay indefinitely on April 3, 2006. A disciplinary investigation was convened on April 24, 2006, to establish whether the grievor was charged with sexual assault on March 17, 2006, and whether he failed to advise his supervisor before resuming his duties that he was charged with a criminal or other statutory offence. As of January 10, 2008, the disciplinary investigation had not been completed. It was reassigned from Messrs. Strijack and Farrell to Messrs. Andresassen and O’Shea (Exhibit 3, tab 17). The Strijack-Farrell investigation report was to have been completed by May 31, 2006 (Exhibit 3, tab 3).

83 At the time of the April 2006 suspension and the June 2008 re-suspension, the employer’s Guide to Staff Discipline (Exhibit 3, tab 40, page 28, section E.1.a) required disciplinary action to be taken within one month of the infraction. In addition, the Treasury Board’s Guidelines for Discipline in effect on both dates required that disciplinary action not be delayed because “… a lengthy time gap between the breach of discipline and management’s response tends to disassociate the offence from the corrective action” and “… may also be considered condoning the offence and may weaken management’s case at adjudication” (Exhibit 3, tab 41, page 642, section 4.c).

84 Only one disciplinary report was completed, dated February 26, 2009 (Exhibit 3, tab 2A). That is 2 years and 10 months after the initial suspension and the beginning of the investigation and approximately 131⁄2 months after Warden Brown reassigned the investigation to Messrs. Andreassen and O’Shea. The report clearly states that it was as “… a result of the Federal Court decision” of May 21, 2008, overturning the July 2007 Board decision upholding the grievor’s original suspension grievance that “… the warden once again suspended the grievor without pay effective June 8, 2008” (Exhibit 1, tab 2A, page 837).

85 In cross-examination, Warden Brown agreed that the May 21, 2008, Federal Court decision caused him to review the grievor’s status and to re-suspend him. Warden Brown conceded in cross-examination that the references in the May 21, 2008, Federal Court decision to evidence of the grievor misleading the police were taken from the March 24, 2006, letter from Mr. Insley, Crown Counsel for the Province of British Columba (Exhibit 10). In the June 2, 2008, re-suspension letter, Warden Brown raises the same issues and concerns that provided the basis for the continuation of the grievor’s April 2006 suspension without pay following the expiration of the 30-day period for taking disciplinary action under the employer’s disciplinary guidelines.

86 The employer periodically reviewed the grievor’s April 2006 suspension without pay between April and October 2006. The grounds it cited for continuing the suspension without pay indefinitely were substantially the same as the grounds set out in Warden Brown’s June 2, 2008, letter reimposing the suspension without pay following the Federal Court decision of May 21, 2008.

87 The continuation of the grievor’s April 2006 suspension without pay was initially justified on several grounds, including that he presented a “… reasonably serious and present risk to the Service” (Exhibit 3, tab 4). The risk was not only to the Correctional Service of Canada but also to inmates, according to a June 2006 memo in the grievor’s disciplinary file (Exhibit 3, tab 5), which indicated that the information received to that point about the sexual assault indicated that the grievor was “… unsuitable for discharging care of other persons - particularly persons with whom he has a ‘power over’ relationship.” Similarly, the memo reimposing the grievor’s suspension on June 2, 2008, cites concerns that his presence at the institution would be detrimental to inmates who had been victimized or who had family members who had been victimized. The memo specifically notes: “Correctional Officers have power over inmates in this setting” (Exhibit 1, tab 1). The memo also raises safety concerns for other staff, as well as the grievor, if he were allowed to continue working.

88 The April and June 2006 memos to the grievor’s disciplinary file (Exhibit 3, tabs 4 and 5) indicate that the nature of the charges against him were such that he would not be able to perform his duties. Warden Brown confirmed this in his July 27, 2006, letter confirming that the suspension without pay would continue (Exhibit 3, tab 6). The Warden’s letters in August, September and October 2006 (Exhibit 3, tabs 7, 8 and 10) continuing the suspension without pay all refer to the serious safety and security risks to the Correctional Service of Canada if the grievor were allowed to return to work. In addition, these letters note the wide and varied groups of people that the Correctional Service of Canada regularly interacts with, including offenders, such that returning the grievor to active service would affect the safety and well-being of all concerned.

89 The June 2, 2008, suspension memo refers to the power correctional officers have over vulnerable inmates, the negative effect the grievor’s presence at the institution would have on inmates, the risk of retribution from inmates, the undermining of the integrity of correctional staff and the grievor’s capabilities as a role model, and the safety risks to other staff (Exhibit 1, tab 1). These are the same factors referred to by Warden Brown in his evidence before the original adjudicator at the October 2006 hearing (Basra, 2007 PSLRB 70, at para 48, 49, 55 and 56).

90 Finally, the June 2, 2008, suspension memo refers to information received from the Crown about the charge against the grievor, such as him concealing his identity, misleading the police by denying any knowledge of the victim and denying that he had sex with her (contrary to the physical evidence), and not notifying the employer that he was under investigation (Exhibit 1, tab 1). The allegations of concealing his identity and misleading the police are clearly taken from the March 24, 2006, letter from Mr. Insley (Exhibit 10), which Warden Brown relied on in his June 6, 2006, disciplinary memo continuing the April 2006 suspension without pay. Despite the fact that the grievor had admitted to knowing the victim and to having sex with her by the time of the preliminary inquiry, there is no mention of this in the June 2, 2008, suspension memo. During cross-examination, Warden Brown admitted that he reviewed the transcript of the preliminary hearing in May or June 2007 but that he did not consider re-suspending the grievor between when he reviewed the transcript and the grievor’s reinstatement in September 2007.

91 When arranging for the grievor’s return to work following the adjudicator’s 2007 decision (Basra, 2007 PSLRB 70), Warden Brown cited the same risks and concerns, including the allegations that the grievor had misled the police.

92 Effective September 4, 2007, the grievor was returned to work at the institution in the A&D area, where he worked directly with female correctional officers and inmates without incident. The employer’s September 12, 2007, TRA noted that his initial return to work was relatively uneventful until a Vancouver Sun newspaper article was published on September 8, 2007. The employer refused requests from the grievor’s bargaining agent to withhold the paper from inmates. After the article’s publication, the employer determined that the overall reaction to the newspaper article was minimal (Exhibit 5). Despite the risks identified by the employer arising from the publication of the article, these concerns were not sufficient to warrant withholding the publication from inmates. The grievor was off work for approximately one week and returned to the workplace on September 17, 2007.

93 The employer conducted a second TRA on October 29, 2007. The grievor reported that he felt that his return to work had gone well and that he had not had any problems. He had no concerns for his safety, and he believed that he could return to any post in the institution (Exhibit 6, pages 39 and 40). The TRA recommended that he continue to work in the A&D area, Monday to Friday, on the day shift. His primary work was the data input of inmate personal effects, which gave him access to confidential inmate information. He was also permitted, in certain circumstances, to assist with processing inmates and with escorting Temporary Detention Unit inmates to and from the unit and the A&D area (Exhibit 6, page 37, and Exhibit 3, tab 14). While working in the A&D area, the grievor worked directly with both female correctional officers and inmates, without incident.

94 A third TRA was completed on December 20, 2007. As of that date, there were no new issues or concerns with the expansion of the grievor’s duties proposed in October. This TRA recommended that in light of his criminal trial being postponed to June 23, 2008, a further expansion of his duties should be considered (Exhibit 7, last page, unnumbered). On February 5, 2008, the grievor’s supervisor indicated that he intended to recommend to the Warden that the TRA be updated to provide that the grievor be permitted to perform all duties in the A&D area, including escorting prisoners. The supervisor further indicated that no concerns had been raised about trust issues. This was supported by Ms. Schaufele (Exhibit 3, tab 18).

95 In the June 2, 2008 suspension memo, Warden Brown admitted that no significant performance issues arose during the grievor’s return to work in the A&D area (Exhibit 1, tab 1, page 2). There were some concerns expressed in the October 29, 2007, TRA that the grievor had expanded the parameters of his duties on his own initiative (Exhibit 6, pages 37 and 39). There was no suggestion that this jeopardized anyone’s safety. The employer agreed that the grievor could assist with processing inmates and with escorting Temporary Detainment Unit inmates to and from the unit when one of the regular A&D staff was unavailable. The December 2007 and the February 2008 TRAs both indicated that a further expansion of his duties should be considered.

96 None of the employer’s witnesses worked directly with the grievor between September 4, 2007, and June 2, 2008. The grievor had both of his female co-workers in the A&D area testify. Ms. Dillabough testified that to her knowledge, no special procedures or protocols were put in place when the grievor returned to work. She was unaware of any increased risk arising from working with him. She had worked in the A&D area at times when he was not working there and saw no difference in the level of safety with him present. She testified that incidents posing a risk to correctional staff are rare.

97 Not only did the employer fail to implement any special procedures in the A&D area while the grievor worked there, but it also did not discuss with Ms. Dillabough assigning him to the work unit before assigning him there. She was not interviewed when the TRAs were done, but in any event, she would have had no problem working with him.

98 Inmates behaved normally around the grievor while he worked in the A&D area. Given the nature of the work in that unit, correctional officers there play little role in the rehabilitation of inmates.

99 Ms. Schaufele testified that the grievor worked hard, did not complain and had a calming effect on many inmates. She felt perfectly safe working with him in the A&D area and did not have any issues with his general comportment. His interactions with the inmates in the A&D area were respectful, as were their interactions with him. No changes were made to the security measures and equipment in the A&D area as a result of his return to work there. The level of risk there did not warrant any changes.

100 According to Ms. Schaufele, during the time the grievor worked in the A&D area, inmates did not make any comments about him personally. None of her co-workers there raised any issues about working with him. The only person who raised any issues was Ms. Cohen, the dog handler who would sometimes come through the A&D area to search inmates’ effects. Ms. Dillabough testified that Ms. Cohen did not want to conduct searches in the A&D area while the grievor was working there, so she did them at the supply depot before the inmates arrived at the A&D area. At the time, according to Ms. Cohen’s testimony, all she knew about the charge against the grievor was what had appeared in the newspaper. Ms. Cohen also indicated that searching the inmates’ property in the supply depot was easier than when the property was being checked by inmates in the A&D area.

101 The Global Agreement between the grievor’s bargaining agent and the employer, which was in effect on June 2, 2008, requires under “Section III-C - Suspension During an Investigation” that when an employee is suspended without pay until the conclusion of an investigation and a decision is rendered on his or her status, local management has to review the status of the investigation every three weeks and consider the possibility of reinstating the employee within a reasonable period. The employee has to be advised in writing of management’s decision and be provided with the reasons for the decision (Exhibit 3, tab 39, page 23). Local management at the institution did not review the status of the grievor’s suspension every three weeks or supply a written decision setting out the applicable reasons for continuing his suspension. This is in contrast to the procedure followed by the employer when he was suspended in 2006 (Exhibit 3, tabs 4 to 10).

102 Until his suspension, the grievor had had a good work record; his performance was fully satisfactory, and he had a better-than-average attendance record. He received several commendations and had no disciplinary record. He worked for 18 months from September 2004 to April 2006 without any performance issues. After he was reinstated in September 2007, he worked from then until June 2008 without incident. He was not considered a sufficient risk to the community to require his incarceration while awaiting trial. After his initial arrest, he was released on a promise to appear and on various undertakings (Exhibit 21). He was also released on undertakings following his conviction pending his sentencing in November 2008 (Exhibit 21).

103 The British Columbia Court of Appeal noted that the grievor’s compliance with his pre-trial undertakings was a positive factor in favour of granting him bail pending the conclusion of his appeals. The central factor to the Court of Appeal granting him bail was the public interest factor, which involved two considerations: the protection and safety of the public, and the maintenance of the public’s confidence in the administration of justice (R. v. B.S.B., 2008 BCCA 483, at para 21 and 22). In determining that the public interest favoured granting the grievor bail pending the conclusion of his appeal proceedings, the Court noted the following, outside of his conduct relating to the offence (at paragraph 23):

… there is nothing in [the grievor’s] past or current circumstances which would indicate that his detention is required for the protection and the safety of the public. The professionals who have assessed and counseled him have indicated that in their opinion he is not a risk to the community and is unlikely to re-offend. He has no prior criminal record and complied with all of the terms of his bail pending his sentence.

104 The grievor was incarcerated from January 19 or 22, 2010, until May 7, 2011, serving approximately 151⁄2 months of a 24-month custodial sentence. There is no evidence that he has breached any of the terms of his probation since his release.

i. Termination grievance

105 When the employer terminated the grievor on June 9, 2009, it purported to make his termination retroactive to June 2, 2008, and claimed at the hearing that this retroactive termination rendered his suspension grievance moot. Nowhere in the June 9, 2009, termination letter did the employer take the position that his suspension grievance was moot. The first issue is therefore whether the employer has the statutory authority to impose a retroactive termination effective over 12 months before the grievor was notified of it. The June 9, 2009, termination letter indicates that his employment was being terminated effective June 2, 2008, pursuant to the Financial Administration Act, R.S.C. 1985, c. F-11 (FAA). Paragraph 12(1)(c) provides that the deputy head has the authority to establish standards of discipline and set penalties, including termination of employment. It does not give the employer, expressly or by implication, the power to impose retroactive terminations.

106 Paragraph 12(1)(c) of the FAA delegates to the deputy head the authority to set penalties as part of discipline, but it does not delegate the power to impose retroactive or retrospective terminations. If neither the statute nor any regulation authorizes someone exercising delegated powers to make decisions that are retroactive or retrospective in effect, the person exercising the delegated authority does not have the power to impose a decision with retroactive or retrospective effect. In this case, the deputy head did not and does not have the power, under paragraph 12(1)(c), to impose a retroactive or retrospective termination upon the grievor (see Shell Canada Ltd. v. Canada (Attorney General), [1998] 3 F.C. 223 (T.D.), at para 35 to 37).

107 Paragraph 12(1)(c) of the FAA includes termination of employment as one of the penalties the deputy head has been delegated the power to impose. As the grievor’s termination clearly constitutes a penalty, the presumption against retroactivity applies. Just as retrospective and retroactive laws have been considered unfair or unjust, so must be penalties that are imposed with retroactive or retrospective effect. In Canadian law, the retrospective application of laws is limited by applying an interpretive presumption that laws operate only prospectively (see Thow v. British Columbia (Securities Commission), 2009 BCCA 46, at para 10 to 13). To permit the employer to impose a termination retroactively would not only give the deputy head powers he or she has not been granted under the FAA but also would be contrary to the Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2 (PSLRA) and the collective agreement between the Treasury Board and the Union of Canadian Correctional Officers – Syndicat des agents correctionnels du Canada – CSN, expiry date 31 May 2010.

108 Subsection 228(1) of the PSLRA requires the adjudicator to give both parties to the grievance an opportunity to be heard. By purporting to backdate the grievor’s termination to June 2, 2008, 12 months before he was notified of his termination, the employer in fact attempted to deprive him of his right to be heard with respect to his suspension grievance, contrary to the PSLRA and the presumption against retroactivity.

109 Pursuant to section 229 of the PSLRA, an adjudicator’s decision cannot have the effect of requiring an amendment to a collective agreement. Clause 20.02 of the collective agreement between the Treasury Board and the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (“the bargaining agent”) gives the grievor the right to grieve the June 2008 suspension. The right to grieve the suspension is not subject to either of the two exceptions in the clause: pursuing the grievance under a different act of Parliament is not required; nor is it an interpretation grievance, which would require bargaining agent approval and representation. Clause 20.23 gives the grievor the right to take his suspension grievance to adjudication, in accordance with the PSLRA and its regulations. To permit the employer to retroactively terminate the grievor, thus depriving him of his statutory and collective agreement rights to grieve his suspension, would not only be contrary to the presumption against retroactivity but also would have the effect of amending the collective agreement to include a third exception to the grievability and the adjudicability of the suspension grievance when the termination has retroactive effect.

110 In York (City) and Canadian Union of Public Employees, Local 10, [1999] O.L.A.A. No. 8 (QL), the employer attempted to backdate a termination by almost three years. The arbitrator held that an employer cannot backdate a termination without express authority (at paragraph 12). In Henderson v. the Province of Prince Edward Island (Regional Administrative Unit No. 2, Ministry of Education) (1981), 29 L.A.C. (2d) 326, the employer in that case purported to backdate the termination of a grievor by two months. The arbitrator held that this was improper. The employer had spent approximately two months considering the grievor’s status before making its decision to terminate his employment. Until that decision was made, the arbitrator held that the grievor remained an employee such that the employer’s attempt to make the termination retroactive could not be upheld. Subsection 12(3) of the FAA provides that disciplinary action must be for cause. Thus, the employer has a statutory duty to establish cause for both the suspension and the termination of the grievor. As the suspension without pay could only have been for cause, the employer could not escape its statutory onus to establish cause for the suspension by purporting to make the termination retroactive to the date of the suspension. This subsection of the FAA, in conjunction with the provisions of the PSLRA and the collective agreement, indicates that the delegated power of the deputy head to set penalties cannot be interpreted as giving the deputy head the power to impose a retroactive termination (see Day & Ross Ltd. v. Jumbo Motor Express Ltd. (1972),27 D.L.R. (3d) 115, at pages 4 and 5).

111 In Roberts v. Deputy Head (Department of Human Resources and Skills Development), 2009 PSLRB 108, the termination of the grievor in that case was made retroactive to the date of his suspension without pay, pending a disciplinary investigation. The deputy head took the position that the suspension grievance was moot because the termination had been backdated to the start of the suspension (see paragraphs 1 and 2). The adjudicator rejected the deputy head’s argument. The fact that the termination was backdated to the beginning of the suspension did not change the fact that a suspension had been in place for approximately one month. Even if it is determined that an employer had just cause for termination after a disciplinary investigation was completed, an adjudicator must still determine if the suspension during the disciplinary investigation was justified (see paragraph 30 of that decision). Likewise, in Baptiste, the adjudicator dismissed the termination grievance of the grievor in that case but granted her suspension grievance in part, even though the suspension was based on the same allegations as the employer relied on to justify the termination (see paragraphs 329 to 331).

112 In this case, Mr. Basra was re-suspended on June 2, 2008, as a result of the Federal Court decision overturning the original Board decision upholding the grievance related to the April 2006 suspension without pay. The disciplinary investigation, which began in April 2006, was still not completed on June 2, 2008, when he was re-suspended. Indeed, it was not completed until the end of February 2009. The disciplinary hearing was held on April 14, 2009, and the decision to terminate was made on June 9, 2009, not 12 months earlier, before the investigation completed and before the grievor had an opportunity to respond to it. Therefore, the termination should be given effect as of the date on which the decision to terminate was made.

ii. Suspension grievance

113 As in the case of the termination grievance, the employer has a statutory onus to establish cause for suspending the grievor on June 2, 2008. During the hearing, it became clear that the employer wished to relitigate and to rely on matters that the Board adjudicated with respect to the original April 2006 suspension, including whether it was disciplinary, a finding that the Federal Court of Appeal upheld. The employer relied on the decision in Burchill v. Canada (Attorney General), [1981] 1 F.C. 109 (C.A.), to support its claims that it should be entitled to that relitigation because the bargaining agent did not argue in the suspension grievance that the employer should not be allowed to engage in such an abuse of process. Burchill stands for no such proposition.

114 In Burchill,the only question submitted by the grievor in that case for determination was whether he had indeterminate status, despite having accepted a term appointment elsewhere. This question was not subject to adjudication. After the grievance was dismissed at the final level of the grievance procedure, Mr. Burchill attempted to refer a different issue to adjudication, namely, that his layoff constituted disciplinary action.

115 The approach taken by the adjudicator and the Court of Appeal in Burchill has no application to Mr. Basra’s suspension grievance and cannot be used by the employer to prevent him from objecting to its attempt to relitigate issues that have already been determined. In this case, the grievor did not attempt to put forward a new grievance on a new ground. His grievance remained the same. The June 2, 2008, suspension constituted disciplinary action, which was unwarranted, excessive and unfounded in fact and law. The employer put forward a case at the hearing that relied heavily on facts and issues that the Board already heard and determined in previous proceedings. To permit the employer to prevent the grievor from responding to the case it put forward at the hearing would constitute an abuse of process and the denial of a fair hearing.

116 Under the Burchill test, the issue is whether the subject matter of the grievance presented at adjudication is the same as the subject of the grievance as filed. When determining whether a grievor is attempting to present a different grievance involving different subject matter, the Board must look at the context of the situation, the wording of the grievance, the evidence of what was said during the grievance procedure and the employer’s response or reply to the grievance (see McMullen v. Canada Revenue Agency, 2013 PSLRB 64, at para 109). In objecting to the employer’s reliance on facts and issues covered by the grievor’s original suspension grievance, he was not changing the subject matter of the June 2008 suspension grievance. The June 2008 suspension remains the subject matter of the grievance, as indicated in the June 2008 suspension grievance and at the hearings before the adjudicator. The grievor did not attempt to grieve something else.

117 The chronology of events is important in this case. The grievor filed his June 2008 suspension grievance as a result of the employer re-suspending him after the Federal Court overturned the July 2007 Board decision upholding the grievor’s 2006 suspension grievance. When the June 2008 suspension grievance was filed, a final determination of the April 2006 suspension grievance had not yet been made. The Federal Court had ordered that the April 2006 suspension grievance be reheard by a different adjudicator. The Federal Court of Appeal rejected this position in its January 22, 2010, decision. It referred the April 2006 grievance back to the original adjudicator.

118 The March 2009 final-level grievance response to the June 2008 suspension grievance expressly indicated that the employer reassessed the issue of the grievor’s continued presence in the workplace as a result of the Federal Court overturning the original Board decision in May 2008 (Exhibit 3, tab 25). In denying the suspension grievance at the final level, the employer relied on the fact that the same issues that led to the initial suspension in April 2006 were still of concern, and therefore, the reimposition of the suspension on June 2, 2008 was justified. The final-level grievance reply was issued on March 16, 2009, 10 months before the Federal Court of Appeal decision, over a year before the Board decision denying the employer’s application to reopen the evidentiary hearing of the original April 2006 suspension grievance, and over 3 years before the Board ultimately upheld the April 2006 suspension grievance.

119 The final decision upholding the April 2006 suspension grievance was issued by this Board on May 1, 2012. The employer cannot stop the grievor from relying on the May 1, 2012, adjudicator decision upholding the April 2006 suspension grievance and the impact on the hearing of his June 2008 suspension grievance in that the June 2008 suspension grievance was filed years before the adjudicator made its final decision on the April 2006 grievance. By the time the hearing of the June 2008 suspension grievance began in December 2012, the employer was well aware not only that the grievor took the position that the April 2006 suspension was disciplinary and without cause, but also that the adjudicator had upheld that position in decisions that were not subject to judicial review under subsection 233(1) of the PSLRA.

120 The grievor’s position was made clear throughout the proceedings before the adjudicator and the Federal Court. The employer cannot claim to have been caught by surprise when he took the position during the hearing of the June 2008 suspension grievance that the employer was attempting to revisit issues that have been conclusively determined by the adjudicator in proceedings that ultimately concluded in his favour on May 1, 2012 (see Leclaire v. Treasury Board (Department of National Defence), 2010 PSLRB 82, at para 24 to 26).

121 Adjudicators should strive to resolve grievances on the basis of the real complaints raised by those grievances rather than on the basis of matters of form or procedure. The employer has not been misled in any way as to the nature of the June 2008 suspension grievance, which is that the June 2, 2008, suspension constituted disciplinary action that was unwarranted and excessive and that was unfounded in fact and law.

122 In re-suspending the grievor on June 2, 2008, Warden Brown relied on the same grounds that he relied on for continuing the grievor’s suspension from April 2006 to the first Board decision in July 2007. These were the grounds put forward to the adjudicator at the October 2006 hearing. Attempts to relitigate issues should not be permitted. The doctrines of claim preclusion, issue estoppel and abuse of process preclude the relitigation of issues, including issues that were not raised or decided in an earlier proceeding but that should have been. A strategic decision not to lead certain evidence at an earlier proceeding cannot be cured by attempting to relitigate the same issue in a subsequent proceeding.

123 There are several reasons for preventing the relitigation of issues. One of the most important is the need for finality and consistency in decision making. The Supreme Court of Canada noted as follows in Toronto (City), at para 51:

… if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.

124 Three requirements must be met for the doctrines preventing the relitigation of issues to apply: the claim or issue sought to be asserted in the subsequent proceedings must have been within the jurisdiction of the prior adjudicator, the prior adjudication must have been done on the merits, and the prior decision must have been final (see Ontario Power Generation Inc. v. Society of Energy Professionals, [2000] O.L.A.A. No. 351 (QL)). The issues that the employer now seeks to relitigate were clearly within the jurisdiction of the adjudicator dealing with the April 2006 suspension. The employer’s attempt to relitigate issues that were or should have been decided by the adjudicator in the April 2006 suspension grievance not only constitutes an abuse of process, but it also constitutes a collateral attack on the appeal of that adjudicator’s final determinations of the nature of the suspension.

125 It is a well-established principle of labour law that an employer may not impose more than one penalty for the same offence. Whether the suspension, which was originally imposed in June 2008 following the Federal Court decision overturning the first Board decision, constituted disciplinary action is an issue that has already been decided and upheld by the Federal Court of Appeal. The Federal Court was wrong to set aside the adjudicator’s decision that the April 2006 suspension became a disciplinary suspension at the beginning of May 2006. Therefore, the employer cannot rely on the Federal Court decision in order to relitigate the issue of whether the suspension that it reimposed in June 2008 constituted further disciplinary action. Nor can the employer relitigate whether it had just cause to suspend the grievor pending the disciplinary investigation, which began in April 2006 and was not completed until the end of February 2009. The adjudicator at the April 2006 suspension grievance hearing also dealt with that issue.

126 That adjudicator held that the suspension became disciplinary when the disciplinary investigation exceeded 30 days. It is important to note that the employer did not begin a new disciplinary investigation into the grievor in June 2008, so an argument could be made that the 30-day period for determining whether disciplinary action should be taken somehow began to run again from June 2, 2008.

127 In Cabiakman v. Industrial Alliance Life Insurance Co., 2004 SCC 55, at para 66, the Supreme Court of Canada considered an employer’s power to impose administrative suspensions without pay and whether an administrative suspension was disciplinary. Drawing on labour law principles, the Court, at paragraph 67, stated that when determining whether a suspension was reasonable, an adjudicator must focus on the situation that existed when the decision to suspend was made because the issue to be determined is whether the employer’s decision to suspend was justified when it was made.

128 If the issue has not already been determined in earlier proceedings, then the onus is on the employer to establish that a suspension without pay was administrative and not disciplinary (see Baptiste, at para 325). If the employer has evidence that the grievor engaged in misconduct and it refers to and relies on that evidence in suspending the grievor without pay, then the suspension must be considered disciplinary. Considering the entire factual context, the 12-month suspension without pay reimposed upon the grievor in June 2008 had a punitive effect. The employer imposed it as a reaction to something the grievor was alleged to have done, rather than being driven by circumstances unrelated to any fault on his part, which would characterize an administrative action.

129 The June 2008 suspension letter specifically refers to the sexual assault and notes that the alleged offence involved deception and that the grievor allegedly concealed his identity, misled police and failed to notify the employer that he was under criminal investigation. Warden Brown stated (Exhibit 1, tab 1, page 2) that these were “huge trust issues” for him as the employer and that the lack of openness with which the grievor dealt with them had “… compromised the trust that this Employer has in [the grievor].” Thus, the employer referred not only to evidence of culpable behaviour by the grievor in the June 2008 suspension letter but also indicated that the employer had already concluded that he had engaged in culpable misconduct. This is sufficient to make the 12-month suspension without pay disciplinary.

iii. Summary

130 The grievor was terminated after a three-year disciplinary investigation process. He did not dispute that he was convicted in July 2008 and sentenced in November 2008. What he disputed was whether the termination was justified, given that the conviction was for off-duty conduct that occurred in September 2004. From September 2004 until April 2006, the grievor worked as a correctional officer. From September 4, 2007, until June 2, 2008, the grievor was reinstated and performed his duties in the A&D area without incident. In the fall of 2007, the grievor’s duties within the A&D area were expanded, and in February 2008, his supervisor recommended a further expansion of his duties, to encompass all A&D duties. Any concerns of negative reactions by inmates to the grievor’s return to the workplace never materialized, despite the publication of the Vancouver Sun article in September 2007 about the adjudicator’s decision ordering his reinstatement. In May 2013, the grievor advised the employer that he was no longer seeking reinstatement as a remedy for his termination. Rather, he sought the other remedies listed in his June 15, 2009, grievance.

131 In Port Moody (City) v. C.U.P.E., Local 825 (1997), 63 L.A.C. (4th) 203, the grievor in that case was a long-term utility worker who was convicted of three off-duty criminal offences and was sentenced to one year in jail. The city became aware of the charges two years before the convictions. In the meantime, the grievor had continued to work at the city, in the public works department. After he was charged, but before he was convicted, some of the grievor’s co-workers indicated to the employer in that case that they did not want to work with him because of the nature of the charges against him. After the grievor was convicted, some employees were even more concerned than they had been previously about working with him. He continued to work in the city’s public works department pending his appeal of his conviction. The fact that some of the former co-workers of the grievor in this case do not wish to work with him does not provide grounds for termination. There must be a causal connection between the grievor’s criminal offence and the duties of his job to justify his termination.

132 In the case at hand, no objective evidence suggested that the grievor presented a risk to his co-workers or to the male inmate population at the institution. The employer’s Code requires an employee to advise his or her supervisor of being charged with a criminal or other statutory offence only before resuming duties. It does not require him or her to advise the employer that he or she is part of a criminal investigation (Exhibit 1, tab 5, section 6e, and Blackburn v. Treasury Board (Solicitor General Canada - Correctional Service), 2003 PSSRB 49,at para 283). There is no duty under the Code to disclose the possibility that a charge might be laid. The duty on correctional officers arises on being charged and on knowing that they are charged (see Basra, 2007 PSLRB 70, at para 106 and 109)

133 Section 8(d) of the Code includes as an infraction committing an indictable or summary conviction offence that may bring discredit to the Correctional Service of Canada or affect the employee’s continued performance with it (Exhibit 1, tab 5). Whether the grievor’s criminal offence brought discredit to the employer is a question “… which calls for the application of common sense and measured judgment” (see Tobin v. Canada (Attorney General), at para 62). The offence for which the grievor was convicted was committed 18 months before the first suspension and over 4.5 years before he was terminated. The only media coverage that generated any concern was the Vancouver Sun article about his reinstatement (Exhibit 1, tab 9A). He was not on duty or in uniform when the assault was committed, and no evidence suggests that he used his position as a correctional officer to coerce, intimidate or threaten the victim. Taking a common-sense approach, a reasonable person would not conclude that any discredit should fall upon the employer as a result of one of its employees committing a sexual assault while off duty and out of uniform and outside the employer’s supervision and control.

134 For these reasons, the grievor seeks an order that the suspension without pay was disciplinary, that the proper date of termination was the date on which the decision to terminate was made and that he be paid damages in lieu of reinstatement, consistent with the Board’s decision in Lam v. Deputy Head (Public Health Agency of Canada), 2011 PSLRB 137, at para 89 to 101.

V. Reasons

135 Despite numerous hearing days, two full days of arguments by counsel for the parties and five volumes of legal authorities submitted by the parties, this is not a difficult case. Put simply, three questions must be answered:

1. Was the grievor’s termination justified?
2. If so, what is the appropriate termination date?
3. Were the suspensions before and after the grievor’s conviction disciplinary in nature?

136 The fact situation is equally simple. The grievor was convicted of sexual assault, for which he received a sentence of two years less a day, as well as probation and a number of CCC sanctions. When the charges against him came to the attention of the employer, the grievor was suspended. He grieved and was ordered reinstated by a member of this Board as an adjudicator. The employer judicially reviewed this decision, and at the Federal Court level, the decision was overturned. While the judicial review process was underway, the grievor was reinstated to the institution in the A&D area on restricted duties. His return to the A&D area was delayed by the ongoing media interest in his case and in his continued employment with the Correctional Service of Canada. In June 2008, following the Federal Court decision and with the grievor’s trial imminent, the employer suspended him without pay, pending the completion of the disciplinary investigation process.

137 The grievor was convicted on July 11, 2008, and he subsequently appealed both his conviction and his sentence to the British Columbia Court of Appeal. Both appeals were dismissed, and the grievor served his sentence at Ford Mountain Institution, a penal institution through which many, if not all, of the inmates at the institution have passed.

138 The disciplinary investigation report was submitted on February 26, 2009. The disciplinary hearing was held on April 14, 2009, following which the grievor was notified by letter dated June 9, 2009 (a year after his suspension without pay), that his employment was terminated effective June 2, 2008, the date of the suspension without pay.

139 There are two grievances before me: one related to the allegedly unwarranted suspension in June 2008, and the other related to the termination of the grievor in June 2009, retroactive to June 2008.

140 In May 2012, the original adjudicator issued his decision related to the grievor’s initial 2006 suspension without pay, pursuant to the Federal Court of Appeal’s order returning it to him for reconsideration.

141 The focus of the grievor’s arguments have been that the disciplinary action in question was excessive, that the offence occurred while he was off duty and that there are other correctional officer positions within the institution to which he could be reinstated that do not have inmate contact. Furthermore, no grounds warranted the suspension without pay in June 2008 as he had worked without incident in the A&D area since his reinstatement in 2007. Finally, he argued that the deputy head has no authority to retroactively terminate an employee as doing so would be a retroactive application of the FAA.

142 The deputy head argued that the nature of the grievor’s offence and his behaviour during the criminal investigation process contravened its Standards of Professional Conduct and Code. The employer’s actions were consistent with its mandate to protect the institution, the inmates in its charge and the employees working there. The grievor’s actions brought shame on the Correctional Service of Canada and brought its reputation into disrepute. The grievor could not be reinstated to any correctional officer position due to his conviction and the CCC restrictions placed on him. The deputy head selected the termination date consistent with his authority under sections 7, 11 and 12 of the FAA.

143 I will first deal with the argument that the termination was excessive and was without cause. While some may be “gob-smacked” at any argument that denies that the grievor’s conduct, conviction and probation restrictions did not warrant the termination of his employment as a correctional officer, I cannot just assume that a criminal conviction warrants termination of an employee. The circumstances of the offence, the impact on his ability to perform his position in the future and the reputation of the employer must all be taken into account when assessing whether termination of employment in these circumstances is appropriate. It is overwhelmingly clear to me that the grievor in this case not only violated the Correctional Service of Canada’s Standards of Professional Conduct (Exhibit 1, tab 6) and Code (Exhibit 1, tab 5), but also, by his actions, made himself ineligible to be a peace officer. As in the Yarmolinsky case, the employer’s conclusion is reasonable that the trust relationship was irreparably damaged, given the nature of the offence, the deceit involved in both the commission and the investigation of the offence, and the grievor’s behaviour throughout.

144 Likewise, I reject as being unfounded the grievor’s argument that taking a common-sense approach, as described in Tobin v. Canada (Attorney General), a reasonable person would not conclude that any discredit should fall upon the employer as a result of one of its employees committing a sexual assault while off duty and out of uniform outside the employer’s supervision and control. While I disagree with this argument based on the facts before me, there may be other circumstances where that common sense approach does not lead to the conclusion that the employer is justified in terminating an employee. Based on the public interest displayed, and the incongruity between having a convicted sex offender employed as a correctional officer, common sense dictates that a convicted sex offender is unsuitable to fulfill the role of correctional officer, who is in charge of inmates, responsible for their rehabilitation and a model to them of how to behave in society.

145 There is no doubt in my mind that based on the following comments of the British Columbia Court of Appeal in Exhibit 2, tab 5, paragraph 20 (from 2009 BCCA 520, at para 20), the grievor knew that his off-duty conduct had a direct impact on his employment with the Correctional Service of Canada and that termination was a possibility:

[20] … As mentioned, the explanation for the denial was the appellant’s concern that, as a corrections officer, his position would be in jeopardy if his employer came to know that he was under investigation by the police… .

[Emphasis added]

146 The testimonies of the numerous witnesses and the exhibits submitted confirm that the grievor was charged with sexual assault, for which he was convicted. There was extensive testimony about the impact of having an alleged sexual offender, let alone a convicted sexual offender, present in the institution. Furthermore, the employer has a legitimate interest in protecting its reputation.

147 The fact that the grievor was reinstated to a position without inmate contact in the A&D area for a period following an initial suspension in 2006 does not negate the employer’s interest in protecting its reputation; nor does it negate the violations of the employer’s Code, in particular section 6 (now section 7):

6. Behaviour, both on and off duty, shall reflect positively on the Correctional Service of Canada and on the Public Service generally. All staff are expected to present themselves in a manner that promotes a professional image, both in their words and in their actions….

And from the employer’s Standards of Professional Conduct, Standard Two:

…

Employees who commit criminal acts or other violations of the law, particularly if the offences are repeated or serious enough to result in imprisonment, do not demonstrate the type of personal and ethical behaviour considered necessary in the Service….

148 I heard nothing in evidence that would mitigate the disciplinary action. The grievor’s witnesses testified that he had not shared with them all the facts surrounding the allegations against him when he asked them to testify on his behalf as character witnesses and at the sentencing hearing, where they spoke on his behalf about the risks he faced if incarcerated in the general population. Furthermore, both of the grievor’s witnesses testified that his actions had embarrassed the Correctional Service of Canada and had violated its Code and Standards of Professional Conduct. Since the grievor did not testify, I am left to draw my conclusions without the benefit of any input from him, as was the case in Baptiste. Furthermore, the evidence related to commendations from the employer early on in his career and the fact that he had better-than-average attendance is not sufficient to mitigate his culpability in these circumstances (see Tobin v. Canada (Attorney General)).

149 As I have previously stated, the argument is that a reasonable person would not conclude that any discredit should fall upon the employer as a result of one of its employees committing a sexual assault while off duty and out of uniform outside the employer’s supervision and control, is without merit. What reasonable person would think that the employer would suffer no embarrassment when one of its employees is convicted of a serious violent offence involving deceit, given the nature of its business?

150 The press coverage, while a consideration, is not the determinative factor in this case. The nature of the employer’s business and the public’s faith in the employer’s ability to meet its mandate are key. How could the employer have a convicted felon, who has served time in a correctional facility and who is subject to probation and a number of CCC restrictions on his activities, working within one of its facilities as a correctional officer? The proposition is ludicrous. With all due respect to the grievor’s counsel, I do not believe that the Tobin v. Canada (Attorney General) decision supports his argument.

151 I read with interest the numerous decisions provided in support of both parties’ arguments. While I have not cited and addressed each and every one, I have taken them into consideration in coming to my conclusion. The fact that in other situations, such as Port Moody (City), employees convicted of criminal offences were reinstated, does not negate the employer’s legitimate concerns of protecting its reputation. Given the deceit involved in the offence and the lack of forthcoming by the grievor in reporting the charges, the employer was justified in its argument that he can no longer be trusted. The fact that he was successfully reintegrated on modified duties to the workplace (against the employer’s will) does not indicate that the employer can now trust him. It indicates that while pending investigation and while awaiting trial, the grievor functioned well in a restricted environment.

152 Having concluded that termination was appropriate in this case, the question raised by the grievor as to the deputy head’s authority to impose a retroactive termination date must be addressed. The grievor argued that the determination of a termination date that precedes the date of the disciplinary hearing is a retroactive application of the FAA. Paragraph 12(1)(c) of the FAA authorizes the deputy head to set and impose penalties with respect to discipline, including discharge. Sections 7 and 11.1 of the FAA grant the Treasury Board a broad unlimited power to set general administrative policy for the federal public service, to organize the public service, and to determine and control the personnel management of the federal public service. Pursuant to paragraph 11.1(1)(j) of the FAA, this includes the power to determine the terms and conditions of employment not otherwise specified in that section to ensure effective human resources management in the federal public service. This authority is among those human resources management functions delegated to deputy heads in respect of their departments or agencies. This catch-all authority is unfettered, unless otherwise limited by statute or a collective agreement (see Public Service Alliance of Canada v. Canada (Canadian Grain Commission) (1986), 5 F.T.R. 51 (T.D.), Peck v. Parks Canada, 2009 FC 686, and Li v. Canada (Citizenship and Immigration), 2011 FCA 110).

153 Part of the decision to impose termination as a disciplinary action must include a determination of the date on which the employment relationship ceases to exist. The grievor argued that the appropriate effective date for the termination, if I conclude that termination was warranted, was the date of the disciplinary hearing, April 14, 2009, some 10 months after the suspension took effect. I disagree with this opinion. So long as the facts upon which the termination is based existed as of the date chosen to give effect to the termination, the deputy head has the authority to set an effective date (see Board of Education for the City of York v. C.U.P.E., Local 994, [1994] O.L.A.A. No. 1313 (QL)).

154 I agree with counsel for the deputy head that all the Millhaven criteria to support termination of employment as a result of off-duty conduct have been met. I accept the evidence of the employer’s witnesses that the grievor’s conduct harmed the employer’s reputation, that his behaviour has rendered it impossible for him to act as a peace officer, that others are reluctant to work with him and that his behaviour makes it difficult for the employer to work safely and efficiently (see Millhaven Fibres Ltd., Millhaven Works ).

155 The basis upon which the grievor was terminated included that he was charged with sexual assault, that he was aware of the fact that he had been charged before the Crown notified the employer of the charge, that his actions were unacceptable and brought the employer’s reputation into disrepute, and that he violated the employer’s Code and Standards of Professional Conduct,all of which resulted in the destruction of the trust relationship between him and the employer (Exhibit 1, tab 3). The letter of suspension, dated June 2, 2008, cites these grounds, which leads me to conclude that the breakdown in the employer-employee relationship existed at the time of the suspension and that that is an appropriate date on which to terminate the relationship. The fact that his later conviction was also part of the reason for his termination does not preclude backdating the termination (see Brazeau).

156 If I am mistaken regarding the mootness of the suspension, I am of the view that the deputy head had just cause to suspend the grievor on June 2, 2008, given his impending trial and the other circumstances causing the employer concern over his ongoing presence in the workplace.

157 Much discussion and argument was made about the grounds for suspension in June 2008 being a re-imposition of the 2006 suspension, which the Board had already considered. The 2006 suspension is a red herring, in my opinion. The question is not whether the employer was justified in suspending the grievor in 2006; that matter has been dealt with by another adjudicator. The question is whether the employer was justified in June 2008 in relieving the grievor of his restricted duties in the A&D area of the institution. The employer’s response at the final level of the grievance procedure (Exhibit 3, tab 25) states that the same issues for which the grievor had been suspended in 2006 continued to exist throughout the time that he was reinstated and worked in the A&D area. The employer conducted ongoing TRAs while he was reinstated, which, to me, indicates an ongoing concern with his presence in the workplace. The Federal Court’s decision overturning the adjudicator’s decision to reinstate him allowed the employer to act upon these ongoing concerns.

158  In Cabiakman, the Supreme Court of Canada stated that when determining whether a suspension was reasonable, an adjudicator must focus on the situation in place when the decision to suspend was made, because the issue to be determined is whether the employer’s decision to suspend was justified at the time the decision was made. The point of departure for my consideration is June 2008. I am not concerned with whether the suspension in 2006 was warranted, as that is a matter over which I have no jurisdiction. At that point, there was no suspension, as the grievor had been working in the A&D area since September 2007 and had been compensated for all lost wages and benefits to 30 days after his suspension in 2006. This was not a re-imposition of the previous suspension. It was a suspension de novo.

159  In light of the fact that the grievor’s trial date was very near, that the employer had ongoing concerns with his presence in the workplace, and that he had not complied with some of the terms and conditions placed on him when he was reinstated, as well as the ongoing public interest in his trial and employment status, I find that the employer was warranted in suspending him without pay pending the completion of the disciplinary investigation. In my mind, this suspension was administrative in nature and consistent with the employer’s authority to suspend under article 20 of the collective agreement as described as follows in section III-C of the Global Agreement between the bargaining agent and the employer:

III-C SUSPENSION DURING AN INVESTIGATION (REFERENCE: ARTICLE 20)

For the purpose of these provisions, CSC will apply the following:

…

2. However in circumstances where local management is satisfied that the continued presence of an employee presents a serious or immediate risk to staff, inmates, the public, or the reputation of CSC, the employee can be suspended without pay until the conclusion of the investigation and a decision has been rendered on the status of the employee.

…

[Emphasis added]

160 Likewise, if I am mistaken in my conclusion that the suspension was administrative in nature, I am satisfied that the deputy head had sufficient grounds, in the circumstances, in suspending the grievor pending its disciplinary investigation in what are very serious allegations of criminal misconduct not to mention the grievor’s subsequent criminal conviction for this misconduct.

161 The time it took to complete this disciplinary investigation is another red herring. The grievor argued that the employer exceeded the one-month limit described in Basra, 2007 PSLRB 70. With all due respect to my colleague, when he states at paragraph 137 of the decision:

[137] When the CSC makes a decision to suspend an employee pending a disciplinary investigation where criminal charges are laid for off-duty conduct, it is incumbent on the CSC to “get on and conclude” an investigation in a timely manner… . ,

That is not always possible within the one-month limit he described at paragraph 136 of his decision. When the charges are of such a nature as in this case, and given the lack of cooperation demonstrated by the grievor in the police investigation and the length of time to get to trial and to get through the appeal process, meeting a one-month limit is not always possible. While I agree the employer should not unreasonably prolong a suspension without pay on the basis of an ongoing disciplinary investigation, in my opinion, if the employer can be shown to be diligent in pursuing the disciplinary investigation, some leeway must be given to the length of time it takes to conclude the investigation. The length of time it takes to conclude a diligent investigation is not always within the employer’s control. That is not to say that the employer can suspend an employee without pay, pending investigation, and allow that employee to languish indefinitely. No doubt had the conviction and sentence not been appealed, the employer would have acted to complete the disciplinary process post-haste.

162 Given the reasons invoked by the employer for the suspension, which I found to be entirely justifiable, there is little point in reconsidering periodically the appropriateness of the suspension in the circumstances of this case. Clearly, the length of the suspension hinged on the outcome of the criminal proceedings launched by the Crown against the grievor, and the grounds set out in the suspension memo of June 2, 2008, which are entirely linked to these accusations and their impact on the grievor’s ability to carry out the duties of a correctional officer, continued to prevail until the disposition of the charges. This was clearly communicated to the grievor and he understood that it was the case.

163 In the case of the suspension without pay on June 2, 2008, there was no undue delay. A representative of the employer attended the grievor’s trial and secured transcripts of it to ensure that the employer had all the evidence to consider in making its decision, which caused some delay. The conclusion of the investigation was further delayed by the grievor, when he appealed both his conviction and sentence. Furthermore, for the period following the trial decision, while awaiting sentencing and the outcome of the appeals, the grievor was a convicted sex offender, ineligible to hold the status of a peace officer. By his own actions, he made it impossible to employ him as a correctional officer.

164 Many arguments were made other than those discussed, as is evident from the extensive report of the arguments noted in this decision. Both sides submitted case law in support of these arguments. Given the true nature of the case before me, I have not addressed each individually; rather, I have referred to those that directly address the true nature of the dispute between the parties.

165 For all of the above reasons, I make the following order:

VI. Order

166 For the reasons stated earlier in this decision, Exhibit 2, tabs 1 and 2(a) through and including 2(f), Exhibit 22, and Exhibit 23 are to be sealed.

167 The grievance in PSLRB File No. 566-02-2304, related to the grievor’s suspension without pay, is dismissed.

168 The grievance in PSLRB File No. 566-02-3031, related to the grievor’s termination of employment for cause, is dismissed.

March 10, 2014.

Margaret T.A. Shannon,
adjudicator