FPSLREB Decisions

File: 166-2-27802 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN SEAN WELLS Grievor and TREASURY BOARD (Solicitor General - Correctional Service Canada)

Employer

Before: Rosemary Vondette Simpson, Board Member For the Grievor: David Landry, Public Service Alliance of Canada For the Employer: Ronald Snyder, Counsel Heard at Moncton, N.B., July 8 to 11, 1997.

Decision Page 1 DECISION At the outset of the hearing, there was an order for the exclusion of witnesses. Mr. Sean Wells was working as a correctional officer II at the date of his discharge from the Springhill Correctional Facility in Nova Scotia. He grieved his indefinite suspension and discharge.

By letter dated October 7, 1996 from Mr. Claude E. Dumaine, Warden of the Springhill Institution, Mr. Wells was informed that his employment was terminated effective April 29, 1996, the date that he was indefinitely suspended. The letter reads in full as follows (Exhibit E-20): Re: Termination of employment with the Correctional Service of Canada Springhill Institution

I have now had the opportunity to thoroughly review the content of the investigation report completed by Bruce Megeney following allegations to the effect that you committed a serious misconduct in violation of the CSC Code of Conduct. The said report was shared with you on August 1, 1996 in the presence of your lawyer, J. Letcher. You were invited to review the report and to submit any pertinent representation before I considered any action relative to the allegations made. At your request, we subsequently met with you and your lawyer on August 7, 1996.

Based on the information available to me, I have concluded that you have in fact violated the CSC Code of Discipline and Standards of Professional Conduct. Specifically, that over the course of several years you socialized and associated in the community with Daniel Poirier, a known drug dealer; that you were present and knowingly involved while this individual conducted drug related activity; and that you maintained inappropriate association with Daniel Poirier while he was incarcerated at Springhill Institution.

Representations made in your defense at our August 07, 1996 meeting did not in my view reduce the weight of the evidence contained in the above mentioned investigation report, nor did you provide me with any circumstances which may have mitigated in your favor. In fact, you did not even acknowledge any misconduct, oversight or use of poor judgment to excuse your participation in the events referred to in the investigation report.

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Decision Page 2 I am satisfied that on the balance of probability, you are guilty of the allegations referred to in paragraph two (2) of this letter. I am also satisfied that as a result of your behavior you have rendered yourself incapable of performing your duties with CSC because your credibility has been so tarnished and your effectiveness so diminished with both staff and inmates, you would be unable to carry out your basic duties with any degree of effectiveness. In essence, the trust so vitally important between management and correctional officers in a correctional environment has been violated to the point that it cannot be restored.

Based on the foregoing, I am left with no alternative but to terminate your employment with the Correctional Service of Canada. In accordance with Section 11 of the Financial Administration Act, the termination is for cause and will be effective April 29, 1996, i.e., your date of suspension.

You have the right, as per your Collective Agreement, to submit a grievance relating to this decision. In the event that you decide to submit such a grievance, it should, in accordance with Article M-38.19 of the PSAC Master Agreement, be submitted directly to the final level of the grievance procedure.

Constable Todd Gilmore, a member of the Royal Canadian Mounted Police since 1987, was an undercover officer in an investigation called “Operation Jim Dandy”. It was an investigation of drug trade, liquor and other contraband. He and a paid police agent operated a small store call the “Jim Dandy Newsstand”. This operated from January to approximately December 1995. In the fall of 1995, he had dealings with Mr. Daniel Poirier, a major cocaine trafficker who was later convicted of drug trafficking. He was sent to jail for five years after pleading guilty.

In his undercover capacity, Constable Gilmore made two drug deals with him. In one deal Mr. Poirier sold $1,700 worth of cocaine to Constable Gilmore and in another, Mr. Poirier was the vendor in a deal for a kilogram of cocaine at $50,000. On December 11, 1995, Mr. Poirier entered the “Jim Dandy Store” with Mr. Wells whom he introduced to Constable Gilmore. Constable Gilmore was already aware, because of surveillance, that Mr. Wells was a person regularly seen with Mr. Poirier. He also knew that Mr. Wells was a prison guard and that he had worked as a part-time security guard. The three of them went to lunch at “Don Cherry’s Sport Bar”; Messrs. Wells and Poirier drove over together and Constable Gilmore arrived alone. They were seated at a small table which measured approximately three feet by three feet, with Public Service Staff Relations Board

Decision Mr. Poirier opposite Constable Gilmore Constable Gilmore. It was his evidence that Mr. Wells was closer to him than Mr. Poirier was. Constable Gilmore stated that the restaurant was crowded but not especially noisy. He and Mr. Poirier had no trouble hearing each other and Mr. Wells was closer to him. Conversation and lunch lasted more than one hour and 75% of the conversation concerned discussion of a drug deal that Constable Gilmore had arranged with Mr. Poirier. Much of this conversation took place at the beginning of the time when all three were facing each other. The conversation was in both French and English and there were a number of references to the French slang for cocaine and hash: “poudre” and “noir”.

Mr. Wells took no part in the drug conversation; he just continued with his meal. There was no doubt in Constable Gilmore’s mind that Mr. Wells heard and understood the conversation which lasted throughout the meal. Mr. Poirier seemed to have no concerns about Mr. Wells overhearing the conversation. At one point, Constable Gilmore asked Mr. Wells what he did for a living. Mr. Wells indicated he installed security alarms. He made no mention of being a prison guard. It was only in the last five or ten minutes that Mr. Wells turned slightly in his chair and faced one of the televisions directly. There is no doubt that he could still continue to hear the conversation at the table. As a result of the “Jim Dandy” and another operation, there was a large “drug bust” in the Moncton area resulting in many arrests, including Mr. Poirier’s, and seizures of large amounts of drugs and other proceeds of crime.

On the same day as the incident in question, Constable Gilmore recorded the incident in his notes.

Constable Brian Barnes, a member of the Moncton Police Force since 1975, testified that he had participated in “Operation Janitor”, a surveillance operation targeting Mr. Poirier. He had known Mr. Wells for eight or nine years while Mr. Wells was a security guard at a local shopping mall. They had a cordial, friendly relationship and were on a first name basis. He had, from time to time, observed him in the presence of Mr. Poirier.

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Page 3 and Mr. Wells to the right of

Decision Page 4 On September 29, 1995, he was watching Mr. Poirier’s house and he saw Mr. Wells on the porch of Mr. Poirier’s residence. Constable Barnes was speaking with other officers, by radio, who were also observing Mr. Poirier. There were four different surveillance teams following Mr. Poirier.

On November 1, 1995, a day that Mr. Poirier was under surveillance, he was at the residence of Mr. Wells at 55 Church Street, Moncton, and Mr. Wells was seen getting into a car with him.

Mr. William John MacDonald, a Moncton police officer since 1978, testified to being part of the joint forces undercover operation. At one point, he was doing surveillance and observed Mr. Wells accompanying Mr. Poirier to lunch at “Don Cherry’s Restaurant” which Constable Gilmore also attended. He had known Mr. Wells for between five and seven years because Mr. Wells had worked as a security guard at the Highfield Square Shopping Mall.

On January 3, 1996, he interviewed Mr. Wells at the police station and videotaped the interview. He later found out that the audio part of the tape was not working. No admission of criminal activity was made by Mr. Wells. He admitted that he “hung around” with Mr. Poirier. He spent a lot of time with him and they had taken trips together, including a trip to a concert in Montreal. On that trip to Montreal, Mr. Wells, Mr. Poirier and another correctional officer drove to Montreal together. Mr. Poirier flew back and the others drove back to Moncton. When questioned about this, Mr. Wells denied transporting anything back for Mr. Poirier.

When asked about Mr. Poirier’s associates, Mr. Wells stated that he was aware of Charles Blades whom he saw once at Mr. Poirier’s house. Mr. Wells stated that he was in another room and did not pay attention. Mr. Wells acknowledged that he knew who Charles Blades was, that is, a known career criminal in the city of Moncton. Constable MacDonald noted that Mr. Blades had acted as a drug runner for Mr. Poirier for which he had been convicted and incarcerated. Mr. Wells also acknowledged that he had known Mr. Poirier was a drug dealer for three years but added: “I never thought he was that big”. Later, Constable MacDonald informed the Institutional Preventive Security Officer (IPSO) where Mr. Wells worked as a correctional officer. He spoke to Mr. Bob Hanley and informed him of his interview with Mr. Wells.

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Decision Page 5 Mr. Bob Hanley, the former IPSO of the Springhill Institution where Mr. Wells worked, testified. He has been ill; he has suffered some memory loss and has been on stress leave and disability since March 1996. He first heard of the investigation into Mr. Poirier before October 1995. Later, on January 4, 1996, he spoke to Constable MacDonald who told him of Mr. Wells’ friendship with Mr. Poirier. Constable MacDonald told him that he had interviewed Mr. Wells about the meeting at “Don Cherry’s Restaurant” where a drug transaction had been conducted. Shortly after he received the call from Constable MacDonald, Mr. Wells came to him and told him that a buddy of his, Daniel Poirier, had been convicted on drug charges and would be coming to the Springhill Institution. Mr. Hanley told Mr. Wells that there should be no problem if he kept away from him and had as little to do with him as possible.

Mr. Bob MacKay, formerly a correctional officer II and now Acting Correctional Supervisor since May 1996, explained that there were four housing units. Inmates should generally not be in housing units other than the one they are housed in. He observed Mr. Poirier three or four times in Housing Unit #10, the Unit to which Mr. Wells was assigned as an officer. He observed Mr. Wells interact with Mr. Poirier for 15 minutes on one occasion. When he asked Mr. Wells why Mr. Poirier was visiting, Mr. Wells replied that Mr. Poirier was a friend of his from the street and was looking for some advice. Mr. MacKay had concerns that Mr. Wells was spending too much time with Mr. Poirier and thereby placing himself in a bad position with regard to his colleagues and other inmates.

On occasion, he noticed Mr. Wells giving Mr. Poirier a newspaper. While it was not uncommon for officers to give the newspaper to inmates in their own housing unit when they had finished reading it themselves, it was not good practice to give anything to inmates from outside their own unit. He stated that Mr. Poirier was out of bounds as soon as he entered the front door.

Mr. Denis Daigle, a correctional officer I at Springhill Institution, testified that he has known Mr. Wells for several years; both had been part-time security officers at the Highfield Square Shopping Mall in Moncton. He also knew Mr. Poirier because he had a shop in the Mall but had no personal relationship with him. He had observed Mr. Wells and Mr. Poirier interact on a number of occasions. He observed Mr. Wells interacting with Mr. Poirier as an inmate on one occasion. When he himself had some

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Decision Page 6 acquaintances from his community assigned to Springhill, he informed the IPSO and made sure they were housed in units other than his own; he made sure that they would not be contacting him. Sometimes inmates have legitimate business in housing units other than their own and there were occasions when they did visit, although this was not to be encouraged.

Mr. George Sproul, a correctional officer II, testified that Mr. Wells had asked him to attend an Elton John concert in Montreal with Mr. Poirier in October 1995. He understood that a number of others would be travelling with them also. As it turned out, he was the only one to go with Mr. Wells and Mr. Poirier. Mr. Sproul understood that Mr. Poirier was a successful contractor. Mr. Poirier drove all three of them to Montreal and paid for the one-room suite which they all shared. Although Mr. Sproul was not sure if Mr. Poirier had paid for his ticket to the concert, Mr. Sproul himself did not pay and to the best of his knowledge Mr. Wells did not pay. Mr. Poirier purchased the tickets from a scalper at a strip club for about $110.00 each. Mr. Sproul stated that he himself was drinking quite heavily that evening. He saw nothing improper take place. The next day, Mr. Wells drove back to Moncton with Mr. Sproul when Mr. Poirier informed them that he had decided to fly back.

The trip caused him no concern until four or five months after the concert when he saw Mr. Poirier in a meal line at the Institution and learned that Mr. Poirier, whom he thought was a successful contractor, was now a convicted drug dealer and federal inmate. He was surprised, concerned and angry and approached Mr. Wells. He was concerned that only a few months before he had accepted an invitation from Mr. Wells to attend the Montreal concert in the company of Mr. Poirier. Mr. Wells assured Mr. Sproul that he had had talked to the IPSO, Bob Hanley, about his relationship with Mr. Poirier and had been told not to worry about it.

When Mr. Sproul was assigned to Housing Unit #10, he had on at least two occasions observed Mr. Poirier come to the Unit to speak to Mr. Wells. On one occasion, Mr. Poirier and Mr. Wells were in a room together for approximately 30 minutes because Mr. Poirier had concerns about his community assessment report and brought these concerns to Mr. Wells.

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Decision Page 7 When Mr. Sproul learned, around April 30, 1996, that Mr. Wells had been suspended for associating with Mr. Poirier, he went to his supervisor, Mr. Bruce Megeney, who referred him to Mr. Dave Coon, the new IPSO, and told them about the trip to Montreal. Mr. Sproul was then placed under investigation. He indicated that he would be quite angry with Mr. Wells for taking him on the trip if Mr. Sproul learned that Mr. Wells had been aware at the time that Mr. Poirier was a drug dealer. Mr. Sproul was disciplined for failure to report the trip in a timely fashion.

Mr. John Alderson also testified for the employer. He has been the Unit Manger since 1989 at Springhill Institution. There is a unit manager for each housing unit. From January 1995 to April 1996, Mr. Wells was assigned to Housing Unit #10 and Mr. Poirier was assigned to Housing Unit #8. Mr. Poirier was not one of the inmates assigned to Mr. Wells. Mr. Wells had no authority to deal with a community assessment report on Mr. Poirier. He was obligated to send Mr. Poirier to his own case management officer. However, if he did engage in a conversation with him about the community assessment report, he should have completed an “Activity Record” (Exhibit E-6). This is used to record activities and dealings by correctional officers with inmates not assigned to their caseloads. It is important that such records be kept because it is critical that staff share information. If Mr. Wells was dealing with Mr. Poirier’s community assessment record during his interaction with him, there is no record of it.

If Mr. Wells knowingly associated with Mr. Poirier, a drug dealer, outside the Institution and attended “Don Cherry’s Restaurant” with him when he discussed a drug deal, it would now be a very serious problem for Mr. Wells to carry out his functions as a correctional officer. Correctional officers must have integrity and their behaviour must reflect positively on the Institution. They must be role models and lead by example.

Mr. Dave Coon, the present IPSO at Springhill Institution since March 1996, has 24 years service in Corrections. He has been involved with this case since March 1996. He was present at meetings which were held with prison officials and members of the police forces involved in the surveillance and evidence gathering against Mr. Poirier. There was a process of disclosure. Later, the Warden,

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Decision Page 8 Mr. Claude E. Dumaine, ordered Mr. Bruce Megeney, a unit manager, to head up an investigation regarding Mr. Wells and his association with Mr. Poirier. Mr. Coon stated that he assisted Mr. Megeney in this investigation. He also acted as an initial fact finder prior to Mr. Wells’ suspension. On April 29, 1996, Mr. Wells was suspended. A number of interviews were conducted of inmates, including Mr. Poirier.

Mr. Coon stated that if it is found as fact that Mr. Wells knowingly associated with a criminal outside the Institution, was present and heard a drug transaction taking place at “Don Cherry’s Restaurant” and inappropriately associated with Mr. Poirier within the Institution, then Mr. Coon would have a very difficult time with Mr. Wells working as a correctional officer within the Institution. As the IPSO, it is his duty to provide a safe and secure environment within the Institution for staff and inmates. The best tool for achieving this is that staff must be honest, trustworthy and professional people at all times. Mr. Coon stated that he must be able to have faith that every member of the staff will carry out his/her duties with integrity and honesty. For example, if Mr. Wells had to search visitors or inmates for contraband, Mr. Coon could not be confident that Mr. Wells would carry out those duties properly and diligently.

Mr. Bruce Megeney, Unit Manager at Springhill since 1995, testified. On March 27, 1996, Mr. Coon informed him, as manager of the unit that Mr. Wells was assigned to, of the information he had received from the police. Over the next month, he spoke every week to Mr. Coon about the progress of his fact finding and Mr. Wells continued in the job. By April 29, 1996, the decision was made to suspend Mr. Wells because of the seriousness of the offenses and the investigation continued. During the month of June, he interviewed staff members who had worked with Mr. Wells. Each was given the opportunity for union representation. A tape recorder was used. Later the tapes were transcribed and each employee was given the opportunity to review the tapes and initial changes. He did a final report and presented it to the Warden on July 8, 1996 (Exhibit E-14). (The admission of the report was objected to as hearsay by the grievor’s representative. I allowed it to be admitted for the sole purpose of showing that the interviews had taken place and not as to the truth of their contents. The evidence that I would rely on would be the viva voce evidence of witnesses at the hearing.)

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Decision Page 9 Although Mr. Megeney’s report referred to a fourth allegation concerning drug related activities by Mr. Wells in Springhill, this was not relied on by the Warden in the decision to take disciplinary action against Mr. Wells. A copy of the report was given to Mr. Wells on August 1, 1996 and he was given an opportunity to rebut the allegations on August 7. The Warden, the Deputy Warden and Mr. Megeney decided that Mr. Wells should have his employment terminated.

Mr. Claude E. Dumaine, the former Warden at Springhill Institution, testified. He is now a special advisor to the Deputy Commissioner, Atlantic Region, for Correctional Service Canada.

In March 1996, he received information that Mr. Wells and Mr. Poirier had associated with one another outside the prison. An investigation was held within the Springhill Institution. It was reported to him on April 29, 1996 that a preliminary investigation confirmed the earlier allegation. The information he received concerning the association of Mr. Wells with Mr. Poirier and also the fact that Mr. Wells had been present at “Don Cherry’s Restaurant” when Mr. Poirier discussed a drug deal with the undercover police officer, Constable Gilmore, convinced Mr. Dumaine that even though the investigation was not complete Mr. Wells should be suspended from duty. Mr. Dumaine requested that the investigation continue. On June 14, 1996, he was presented with the final report of the investigation. Mr. Dumaine studied the report that he had been given and then set up a meeting for August 1, 1996. He requested the presence of Mr. Wells and his lawyer, Mr. Letcher, Deputy Warden A. Alexander, and Mr. Megeney. Warden Dumaine was also present at this meeting. He wanted to give the report to Mr. Wells so that he could go over it and make any rebuttal that he wished to make on the allegations. Mr. Wells was given full opportunity for himself and his lawyer to speak. It was decided to meet again on August 7, 1996. The allegations that Mr. Dumaine relied upon were: (1) Mr. Wells’ association with Mr. Poirier on a social level when he knew him to be a drug dealer; (2) the fact that Mr. Wells was present at “Don Cherry’s Restaurant” when a drug deal was being discussed; and (3) Mr. Wells had involved himself inappropriately with an inmate.

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Decision Page 10 Mr. Wells was given full opportunity to present his response to the allegations. At no time did Mr. Wells acknowledge any misjudgment on his part. Mr. Dumaine acknowledged that he was the decision-maker in the decision to terminate Mr. Wells’ employment. The termination letter was, however, signed by Mr. Alexander, the Acting Warden, but the letter was written by Mr. Dumaine.