FPSLREB Decisions
Decision Information
Termination (disciplinary) - Indefinite suspension - Prison guard - Unauthorized relationship with inmate - Remedy - grievor was employed in a maximum security institution - inmate was confined in the institution after having been found guilty of the theft of 40 guns from a gun shop - grievor indicated to inmate that he was interested in purchasing a hunting rifle with a Leopold scope which inmate had for sale - inmate assured grievor that gun had not been stolen - when another prison guard advised grievor that it would be inappropriate for him to purchase a rifle from an inmate, grievor put his plan on hold pending the inmate's release from prison - upon inmate's release on parole, grievor purchased the hunting rifle from him at a price well below market value - inmate promised to obtain the Leopold scope for the grievor as it was missing at the time of purchase - inmate was subsequently incarcerated at the institution following the revocation of his parole arising out of an incident of break and enter - when the grievor learned that the inmate had been bragging about his relationship with him, the grievor visited the inmate and directed him to stop - he also enquired about the promised Leopold scope - following an investigation, the RCMP seized the hunting rifle from the grievor as inmate had stolen it during another incident of break and enter - grievor was indefinitely suspended and then discharged retroactive to the date of his suspension for having an unauthorized relationship with the inmate contrary to the Code of Discipline and Standards of Professional Conduct - grievor conceded that he was guilty of the misconduct alleged by the employer - however, he argued that discharge was too severe a penalty under the circumstances, particularly in light of his 16 years of unblemished service - adjudicator concluded that discharge was too severe a penalty under the circumstances - evidence established that another prison guard, who had also purchased a rifle from the inmate, had been allowed to resign rather than face disciplinary action - the warden indicated at the hearing that he was prepared to make the same offer to the grievor - adjudicator offered the grievor the opportunity to accept the warden's offer to resign and have his disciplinary record wiped clean - in the alternative he substituted a one-year suspension without pay or other benefits for the discharge. Grievance against indefinite suspension denied. Grievance against discharge allowed in part. Cases cited:Compagnie Minière Québec Cartier v. Québec, [ 1995] 2 S.C.R. 1095; Amos (166-2-14678); Francis (166-2-24111); Wells (166-2-27802); Parsons (166-2-27006 & 27007); Cudmore (166-2-22426).
Decision Content
Files: 166-2-28509 28510
Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN VALMOND BABINEAU Grievor and TREASURY BOARD (Solicitor General - Correctional Service Canada)
Employer
Before: Donald MacLean, Board member For the Grievor: Michael Tynes, Public Service Alliance of Canada For the Employer: André Garneau, counsel Heard at Moncton, New Brunswick, October 7 and 8 1998.
Decision Page 1 Valmond Babineau has been an employee with Correctional Service of Canada for 16 years, since July 1981. He is a Correctional Officer (CX-COF-I) at the Dorchester Penitentiary.
Mr. Babineau claims that, on November 18, 1997, the employer discharged him from the Public Service without just cause. While he does not contest the essential elements of the employer’s allegations against him, he maintains that his discharge was excessive in the circumstances.
The employer says that as a result of an investigation by Hal Davidson, the deputy warden of the penitentiary, they determined that Mr. Babineau had an unauthorized relationship with an inmate, Stephen Harris. The employer says that Mr. Babineau purchased a hunting rifle from Mr. Harris. Gary Mills, the warden at Dorchester Penitentiary, concluded that Mr. Babineau’s actions contravened the employer’s Code of Discipline and the Standards of Professional Conduct.
At first the employer had imposed an indefinite suspension on Mr. Babineau, effective on November 18, 1997, pending the outcome of their investigation. The employer then discharged Mr. Babineau on December 19, 1997, and made the discharge retroactive to the date of the indefinite suspension. Mr. Babineau submitted grievances against both the indefinite suspension and the discharge.
The evidence is that the penitentiary is a maximum security institution. Mr. Babineau has been a correctional officer at Dorchester since 1981. Mr. Babineau is a good employee who has an otherwise unblemished employment record.
The evidence is that in 1990 Mr. Harris had stolen 40 guns during a break and enter at a gun shop in Moncton. He was charged and found guilty of that crime. He was initially incarcerated at the penitentiary early in 1991.
Mr. Babineau has known Mr. Harris since the summer of that year. While Mr. Babineau is aware that Mr. Harris is a game hunter, and he is aware that Mr. Harris is a fan of boxing and baseball, he says that he was never aware of the reasons why Mr. Harris was incarcerated.
The events that are pertinent to this case first surfaced in late 1995. At the time Mr. Babineau had discussions with Mr. Harris regarding the latter’s interest in selling a Public Service Staff Relations Board
Decision Page 2 (model) 22-250 hunting rifle. Mr. Harris had one with a Leopold scope. Mr. Babineau said that he was interested in getting that type of gun. Mr. Harris told him that he was hurting. He “needed the money.” Later, they discussed the possibility of Mr. Babineau purchasing the rifle from Mr. Harris. Mr. Babineau said he would buy it for $300.00. Mr. Harris also told Mr. Babineau that he could get other items for him: “Just name it. He could get it.” However, Mr. Babineau was not into that sort of stuff. He suspected that they would be stolen goods.
Shortly thereafter Mr. Babineau spoke with Daniel LeBlanc about his intended purchase of the rifle from Mr. Harris. Mr. LeBlanc is a Case Management Officer (a CX- 2) at Dorchester. He told Mr. Babineau that such a purchase from an inmate while he is incarcerated would be contrary to the Code of Discipline and could result in the loss of his job.
Mr. Babineau testified that he had not realized that there were such rules. He told Mr. Harris that he had to put off any further conversation on the subject. He told Mr. Harris that he could not talk to him about the rifle while Mr. Harris was still at the institution.
In March 1996, Mr. Harris was released from the penitentiary on parole to the Island View Half-Way House in Fredericton, N.B. In the spring of 1997, Mr. Babineau learned that Mr. Harris was at the half-way house. In late March or early April of 1997, he called Mr. Harris at the half-way house a couple of times to ask if he still had the rifle.
When Mr. Davidson initially questioned him, Mr. Babineau answered that he had only contacted Mr. Harris once at the half-way house. He “just wanted to say hello”. Yet, later when Warden Mills posed the same question to him, Mr. Babineau admitted that he had called Mr. Harris on two occasions at the half-way house. Those conversations included references to the rifle. Mr. Harris told Mr. Babineau “I still have your gun.” Mr. Babineau was biding his time until Mr. Harris was released and he hit the street.
Mr. Harris was released on parole from the half-way house on May 8, 1997.
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Decision Page 3 Mr. Babineau received a call at home from Mr. Harris around June 10, 1997. Mr. Harris wanted to know if Mr. Babineau was still interested in purchasing the 22-250 rifle. Mr. Harris also mentioned other articles that he had for sale at his camp at Coles Island. He had such things as chain saws, generators, sea-doo’s, and ski-doo’s. Mr. Babineau again indicated that he was not interested in any other items but the rifle. While he suspected that the other items were “hot”, he got more assurances from Mr. Harris that the rifle legitimately was his. That reassured Mr. Babineau. He decided to go to Fredericton to see the rifle for himself.
Mr. Harris asked Mr. Babineau to contact Wayne Hicks, another correctional officer (CX-2), living in River Hebert, Nova Scotia, (an hour’s drive from Moncton). He also had a gun for Mr. Hicks.
Both Mr. Babineau and Mr. Hicks were on extended sick leave at the time. Mr. Babineau was recuperating at home from a fall at work. Mr. Hicks had had surgery on a shoulder.
They went to Fredericton together to purchase the rifles. Mr. Babineau paid $300.00 for the 22-250. It was in very good condition. At a store it would have cost $500.00. When Mr. Babineau purchased the rifle, it did not have the Leopold scope that Mr. Harris promised and which Mr. Babineau wanted. Instead, it had a Tasco scope. Mr. Harris told Mr. Babineau that his brother had switched the scopes. He promised Mr. Babineau that he would get him the Leopold scope.
On June 25, 1997, Mr. Harris was implicated in another break and enter in the Fredericton area. He was arrested for violation of his parole. On the same afternoon Mr. Babineau called Mr. Hicks at his home. Rumour had it that, as a result of the break and enter, Mr. Harris’ parole was suspended. He would be returning to the penitentiary.
Mr. Babineau, when questioned by Mr. Davidson, denied making any call to Mr. Hicks to discuss the news that Mr. Harris’ parole had been suspended. When Mr. Mills brought up the same issue with Mr. Babineau, he changed his story. At that time Mr. Babineau stated that he had received a call from Mr. Hicks. However, he continued to deny that Mr. Hicks informed him that Mr. Harris’ parole had been suspended and he had been re-incarcerated.
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Decision Page 4 Mr. Babineau’s own telephone records show that he called Mr. Hicks in River Hebert on June 25 and June 27, 1997. There was no other reason for the calls. While Mr. Babineau and Mr. Hicks knew one another, they were not friends. They were not from the same community.
On July 2, 1997, Mr. Harris was re-admitted to the penitentiary because of the suspension of his parole. Soon after his arrival at the penitentiary, the authorities suspected that Mr. Harris was involved in illegal activities while he was incarcerated at the institution.
Warden Mills authorized the interception of telephone calls to Mr. Harris. From those interceptions, it became apparent that illegal activities may have involved Mr. Babineau and Mr. Hicks.
Management contacted the R.C.M.P. The R.C.M.P. were aware of a previous break and enter on June 6, 1997, in McAdam (west of Fredericton). Some guns had been stolen. With information from the telephone taps the R.C.M.P. decided to investigate the purchase of a couple of hunting rifles by Mr. Babineau and Mr. Hicks. The types of rifles that Mr. Babineau and Mr. Hicks had purchased were among the same models as those that were stolen during the June 6 th break and enter. In September 1997, a correctional officer, Roger Cormier, telephoned Mr. Babineau. He told Mr. Babineau that Mr. Harris was throwing Mr. Babineau’s name around. He said that Mr. Harris was claiming that he was a good buddy with Mr. Babineau. Mr. Cormier suggested to Mr. Babineau that he might want to come to the penitentiary and clear things up with Mr. Harris.
On September 10, 1997, during a visit to the institution to check his sick leave status, Mr. Babineau went to see Mr. Harris in the segregation unit at the penitentiary. He told Mr. Harris to stop using his name around the penitentiary. At the same time, he also asked Mr. Harris about the Leopold scope. Mr. Harris’ reply was that he would arrange things for Mr. Babineau.
Mr. Babineau did not tell his supervisors about this conversation with Mr. Harris.
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Decision Page 5 The R.C.M.P. executed search warrants at the homes of both Mr. Hicks and Mr. Babineau on September 23, 1997. At that time, the R.C.M.P. seized the rifles purchased from Mr. Harris. Ultimately, as the result of a comparison of the serial numbers and other tests, the police determined that the rifle seized at Mr. Babineau’s residence was one of the rifles stolen during the break and enter on June 6, 1997.
On September 24, 1997, Mr. Mills, or the acting warden at the time, ordered the disciplinary investigation. Hal Davidson conducted that investigation. Its purpose was to determine if Mr. Babineau, or Mr. Hicks, was involved in a breach of the Standards of Professional Conduct. The primary element of the investigation included the question of whether Mr. Babineau had had an unauthorized relationship with Mr. Harris by purchasing items from him.
Mr. Davidson testified that the Code of Discipline and Standards of Professional Conduct are well known, or should be well known, by the employees at Dorchester. Mr. Babineau knew that Mr. Harris was on parole at the time of the purchase of the rifle. Mr. Babineau should not have purchased the rifle from Mr. Harris. He was stepping outside the line in doing so. Mr. Davidson added that Mr. Babineau should have realized, in the circumstances, that it was a good possibility that it was a stolen rifle.
Mr. Mills testified that in coming to his decision on the discipline he considered Mr. Babineau’s 16 years of unblemished service and his eventual acknowledgement of wrong doing. Nevertheless, Mr. Mills considered the seriousness of the relations between Mr. Babineau and Mr. Harris. It was not a spontaneous, spur of the moment matter. It lasted over a period of two years. It compromised the integrity of both Mr. Babineau, as an individual, and the penitentiary, as an institution. Mr. Babineau had been deceitful when he was first asked about his involvement with Mr. Harris. Mr. Mills believes that Mr. Babineau cannot be trusted. The job of a correctional officer is to help motivate offenders to better themselves. He is not supposed to encourage criminal activity by purchasing articles from them.
Mr. Mills confirmed that Mr. Hicks is no longer employed with the Correctional Service. He was also the subject of Mr. Davidson’s investigation. He too was implicated in the purchase of a rifle from Mr. Harris. After Mr. Hicks received the
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Decision Page 6 report of the investigation, he had contacted Mr. Mills regarding his purchase of a rifle from Mr. Harris. Mr. Hicks requested that he be allowed to resign. On reflection, Mr. Mills considered that it was better to allow Mr. Hicks to resign than to discharge him. Mr. Mills believed that the resignation was a reasonable option for Mr. Hicks. It would not taint his record if he resigned. Mr. Hicks was able to leave with his benefits. He took early retirement. Mr. Mills added that he would consider the same course of action for Mr. Babineau in the current situation.
The evidence of Mr. Mills is that about 80% of the correctional officers, who are about to be disciplined for unauthorized relations with the offenders, take advantage of an early retirement option. This enables the employee to avoid a black mark on his or her record. Mr. Mills said that he had allowed this option for other (now former) employees at Dorchester.
He noted that he has never conveyed a resignation or retirement offer to a correctional officer in these circumstances. The usual situation is that the employee asks if he or she can resign. To maintain fairness in this instance, Mr. Mills testified that the offer is extended to Mr. Babineau to resign without a mark on his record.
Christina Carol is a Correctional Officer at the Springhill Institution. She was the Case Management Officer for Mr. Harris. She too was disciplined for a violation of the Code of Discipline concerning Mr. Harris. She played a minor role in the events by supplying information to Mr. Hicks on Mr. Harris. She remains still employed with the Correctional Service at Springhill.
Mr. Babineau testified that he did not know that purchasing the rifle from Mr. Harris contravened any rules. He made the purchase after Mr. Harris was released from Dorchester and the halfway house. He did not see that it was so wrong to make the purchase after Mr. Harris was out on the street. Furthermore, he had asked Mr. Harris whether the rifle was stolen. Mr. Harris had reassured him that it was not. In retrospect, he should not have believed Mr. Harris. He knew that Mr. Harris was a notorious liar and that he exaggerated things. It was hard to believe him. You did not know when Mr. Harris was lying. He should not have made the purchase. He does not buy “hot” items.
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Decision Page 7 Mr. Babineau and the rest of the employees at the penitentiary had received booklet copies of the new Code of Discipline and the Standards of Professional Conduct in 1993. However, he and most of the other employees had thrown them in the garbage without looking at the contents. Mr. Babineau believes that he and the other CX’s should have had instructions on the implications of the rules in the booklets.
The evidence of the president of the bargaining agent’s local at Dorchester is that while there were new versions of the employer’s Code of Discipline and the Standards of Professional Conduct in 1993, previous versions of the documents had similar provisions dealing with contacts with offenders. It was not something brand new in the 1993 versions.
The following are the relevant provisions from the Standards of Professional Conduct (exhibit 10) and the Code of Discipline (exhibit 11): STANDARDS OF PROFESSIONAL CONDUCT 4. STANDARD FOUR RELATIONSHIPS WITH OFFENDERS Staff must actively encourage and assist offenders to become law-abiding citizens. This includes establishing constructive relationships with offenders to encourage their successful reintegration into the community. Relationships shall demonstrate honesty, fairness and integrity. Staff shall promote a safe and secure workplace and respect an offender’s cultural, racial, religious and ethnic background, and his civil and legal rights. Staff shall avoid conflicts of interest with offenders and their families.
Discussion and relevance... Inappropriate relationships include, but are not limited to, concealing an offender’s illegal activity, using inmate services for personal gain, and entering into business or sexual relationships with offenders, their families, or their associates...
Any doubts or concerns staff have involving relationships with offenders should be discussed with the supervisor...
Remember that a professional relationship means loyalty to the values, ethics and standards of the Correctional Service of Canada.
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Decision Page 8 CODE OF DISCIPLINE Arising from the Standards of Professional Conduct are a number of specific rules that employees of the Correctional Service of Canada are expected to observe. An infraction of those rules may, depending on its severity, result in the following action being taken:
a. Oral reprimand; b. Written reprimand; c. Suspension (or financial penalty); d. Discharge; e. Termination of employment or demotion for cause. STANDARD FOUR RELATIONSHIPS WITH OFFENDERS Infractions An employee has committed an infraction, if he or she: … improperly uses his or her title or authority for personal gain or advantage;
enters into any kind of personal or business relationship not approved by his or her authorized superior with an offender or ex-offender, or the offender’s or ex-offender’s friends or relatives.
gives, or receives, any gift, gratuities, benefits or favours, or engages in personal business transactions with an offender or ex-offender or the offender’s or ex-offender’s friends or relatives; …
Summary of the representations on behalf of the Parties Argument for the Employer Counsel for the employer submits that Mr. Babineau’s termination was a result of an unauthorized relationship that he had with Mr. Harris. This relationship went back as far as 1995. The nature of this relationship was improper.
A fellow officer warned Mr. Babineau in 1995 that he should not purchase a rifle from an inmate. However, Mr. Babineau pursued discussions on buying the rifle while
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Decision Page 9 Mr. Harris was at the half-way house. He made the purchase while Mr. Harris was still on parole from the institution. The rifle that he got in June 1997, was the same sort of rifle that Mr. Babineau and Mr. Harris had spoken about in 1995, while Mr. Harris was still incarcerated at Dorchester.
Mr. Babineau received a good bargain on the rifle. He paid $300.00 for it, while the price in the stores was in the $500.00 range. However, it did not include the scope that Mr. Harris had earlier said would be on it. With this in mind, Mr. Babineau continued to pursue the purchase transaction in September 1997, after Mr. Harris was re-incarcerated. He wanted to get the scope that he had agreed to.
Mr. Babineau tells us that when he first spoke to Mr. Harris, he did not think that it was against the rules if he were to acquire a rifle from one of the inmates. Yet, he was concerned whether the rifle was stolen. He asked Mr. Harris about that.
Mr. Babineau knew that Mr. Harris was a liar and that he had all kinds of other goods for sale. Yet, when Mr. Harris told Mr. Babineau that the rifle was not stolen, that made everything legitimate for Mr. Babineau. When one remembers that Mr. Harris is a notorious liar, it is inconceivable that Mr. Babineau was satisfied that the rifle was not stolen.
The Code of Discipline and the Standards of Professional Conduct contain rules that prohibit transactions between correctional officers and offenders. The rules existed at the time of Mr. Babineau’s transaction with Mr. Harris. The rules also existed in other forms prior to Mr. Babineau’s actions.
Mr. Mills testified that those transactions between correctional officers and offenders or ex-offenders compromise the institution. These types of action not only breach the rules of the institution; they also break the rules of common sense. A correctional officer has to observe the rules of the institution. In this respect, a correctional officer is enjoined from developing relations with the offenders beyond their professional duty to assist offenders with their self-improvement.
Counsel noted that Mr. Babineau did not want to have anything to do with those rules. He threw them in the garbage. He wanted the rules to say that it was okay to purchase goods from the offenders without regard to the consequences.
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Decision Page 10 Even though Mr. LeBlanc informed Mr. Babineau that the purchase of a rifle from an offender would be improper and could lead to his termination, Mr. Babineau pursued the purchase anyway. He went after the purchase of the gun with a passion.
He phoned Mr. Harris while the latter was in the half-way house. He wanted Mr. Harris to know that he still wanted the gun. Mr. Babineau had pretended to end the matter in 1995. Nevertheless, he wanted the gun when Mr. Harris was out on the street.
Mr. Babineau closed his eyes to what was going on. This does not show a good ethical standard for a correctional officer. This remains valid even if Mr. Babineau honestly believed that he could have transactions with an ex-offender. Mr. Babineau did not report any of these events to his supervisor.
After the transaction, Mr. Harris’ parole was revoked. On the next day Mr. Babineau telephoned Mr. Hicks. Mr. Hicks told Mr. Babineau that Mr. Harris’ parole had ended and he was now back in the institution. This was the only logical connection between Mr. Hicks and Mr. Babineau.
Later, in September, Mr. Cormier telephoned Mr. Babineau to inform him that Mr. Harris was throwing his name around, as if they were good buddies. After receiving that information, Mr. Babineau decided to go to see Mr. Harris. Mr. Babineau wanted to put a stop to Mr. Harris using his name.
Mr. Babineau tells us that at that time, other than Mr. Harris using his name, the only concern he had was about the gun. Mr. Babineau wanted to know if it was stolen. Yet, he believes Mr. Harris when he said that the gun was not stolen. Mr. Babineau then pursued the rest of the transaction regarding the Leopold scope.
When Mr. Davidson interviewed Mr. Babineau, he hid part of the truth and never accepted for one minute that he had done anything wrong. He testified during the adjudication hearing that he now knows that he broke the rules, but he did not understand the consequences of his actions.
Mr. Babineau had spoken to Mr. Mills and revealed some of the parts of his story that he had not related to Mr. Davidson. Although he did not feel that he broke any
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Decision Page 11 rules at that time, Mr. Babineau still does not appreciate why there are rules that govern the relations between the offenders and correctional officers.
Mr. Babineau does not appreciate the idea that correctional officers are to maintain professional and ethical examples for the offenders. He does not appreciate that he is required to maintain the standards of integrity and professionalism set forth in the rules.
Mr. Mills concluded that Mr. Babineau had stepped over the line when he had dealings with Mr. Harris. During the course of the interview between Mr. Mills and Mr. Babineau, Mr. Babineau continued to deceive Mr. Mills about the nature of his actions. This does not indicate that Mr. Babineau is a good candidate for rehabilitation. The employer had no alternative but to terminate Mr. Babineau.
The employer had to demonstrate that its allegations were true and that the sanction imposed was reasonable. The employer has proven that Mr. Babineau purchased the gun from Mr. Harris. Even if Mr. Babineau honestly thought that the rules of conduct did not apply to a correctional officer and a parolee, we cannot accept that Mr. Babineau should have believed Mr. Harris when he said that the gun was not stolen. Furthermore, Mr. Babineau had been warned that buying a gun from an offender would be a violation of the institution rules and could lead to termination.
The adjudicator’s role in this situation is to ascertain whether the termination of Mr. Babineau’s employment is reasonable in the circumstances. Mr. Mills has said that a correctional officer who exhibits this type of character is not the right person for the job. Therefore, the sanction was reasonable in the circumstances.
Counsel rejected Mr. Babineau’s suggestion that the employer relied on the evidence of Mr. Harris. The only evidence that they have relied on is that given by Mr. Babineau. There is no question of rehabilitation in the current situation in the face of Mr. Babineau’s attitude and behaviour.
Counsel for the employer cited the following authorities and cases: (1) Allan R Francis and Treasury Board (Solicitor General - Correctional Services Canada) Board File 166-2-24111, October 7, 1993, (Turner) at pages 1, 9, 14 and 17.
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Decision Page 12 (2) Sean Wells and Treasury Board (Solicitor General - Correctional Service Canada), Board File 166-2-27802, November 25, 1997, (Simpson), at pages 1 and 14.
(3) Kirk Parsons and Treasury Board (Solicitor General - Correctional Service Canada), Board Files 166-2-27007 and 166-2-27006, June 24, 1996, (Simpson), at pages 24 and 26.
Mr. Garneau asked that the grievances be denied. Argument for Mr. Babineau Mr. Babineau does not contest the facts as the employer presented them. He admits that he bought a rifle from Mr. Harris. However, he thought that it was okay to do so because Mr. Harris was out on the street at the time of his purchase.
He does not contest the fact that his actions violated the Standards of Professional Conduct and the Code of Discipline and that these actions are deserving of some form of disciplinary action. However, Mr. Babineau argues that there are mitigating factors in this situation. His discharge should be cancelled and substituted with a lesser penalty.
Mr. Babineau has 16 years with the employer. He has no prior record of discipline. The simple fact is that Mr. Babineau made a mistake. He had received the Standards of Professional Conduct and the Code of Discipline in July 1993. Mr. Babineau concedes that he did not read these documents and that he threw them out.
It was wrong of Mr. Babineau not to read the Standards of Professional Conduct and the Code of Discipline. However, even if he had read those rules, there would still be an adjudication. The standards are brief. They leave lots of room for interpretation about how much discretion a correctional officer has in his contacts with an offender or an ex-offender.
Counsel for the employer offered definitions regarding offenders and ex- offenders; yet these definitions do not appear in the Standards of Professional Conduct or the Code of Discipline. If one were to ask what the actual definitions were, there would be different answers from different people.
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Decision Page 13 Mr. Babineau dealt with Mr. Harris based on what he was told by Mr. LeBlanc. Mr. LeBlanc told Mr. Babineau not to buy anything from Mr. Harris while Mr. Harris was incarcerated. Therefore, Mr. Babineau was under the impression that, once Mr. Harris was no longer an offender in the institution, it would be okay to buy something from him.
Even if Mr. Babineau’s honest impression of the rules is wrong, he could have come to the same conclusion had he read the rules. The Standards of Professional Conduct and the Code of Discipline were passed out without any training on the interpretation that they should be given.
Mr. Babineau did not attempt to deal with Mr. Harris before his release in March 1996. This is because Mr. Babineau did not want to jeopardize his employment. If he intended not to abide by the rules, Mr. Babineau would have approached Mr. Harris before that time.
Mr. Babineau did not contact Mr. Harris about the rifle until he was released to the half-way house. At that time, he let Mr. Harris know that he would be interested in the rifle when Mr. Harris was back out on the street. After Mr. Harris left the half-way house, he contacted Mr. Babineau to inform him that he had the rifle. Mr. Babineau clearly thought that he was not violating any rules by going to Fredericton to make a purchase from a person whom he thought was no longer an offender.
Mr. Babineau had contemplated the purchase of the rifle since 1995. Is he supposed to know that the rifle was stolen because Mr. Harris had a record for break and enter? Sure Mr. Babineau knew that Mr. Harris was a liar. Yet, Mr. Babineau did not know the type of criminal record that Mr. Harris had.
In any case, Mr. Harris was able to convince Mr. Babineau that the rifle was not stolen. The notion that the rifle was not stolen was reinforced when Mr. Babineau inspected the rifle. The rifle was dry and had not been oiled for a number of years. That is a sign that the rifle had been stored for some time.
If Mr. Harris is considered to be a liar, why is it that the employer prefers Mr. Harris’ story to the testimony of Mr. Babineau? Mr. Babineau simply did not believe that the rifle was stolen.
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Decision Page 14 Mr. Babineau went to see Mr. Harris after Mr. Cormier informed him that Mr. Harris was throwing his name around the institution. Mr. Babineau had to deal with Mr. Harris so that Mr. Harris would not use his name. While Mr. Babineau was there, he raised the issue of the Leopold scope that was supposed to be on the rifle instead of the Tasco scope.
We cannot consider this conversation to be engaging in a transaction. It would be more like completing the original transaction that was made while Mr. Harris was not an inmate. Mr. Babineau only wanted to get what he had paid for.
Whatever Mr. Harris said should have been treated carefully by the employer. Once he returned to the institution, Mr. Harris had motive to put himself in a good light to get a transfer to the minimum security Westmorland Institution, rather than to remain in protective custody. The employer relied heavily on what Mr. Harris had to say.
For whatever reason, there has been no disciplinary action taken against Mr. Hicks. Mr. Mills said that Mr. Hicks could either retire or put in for a resignation.
The representative argues that even though the Code of Discipline has been violated, reinstatement of Mr. Babineau would not jeopardize the integrity or the security of the institution. There have been more severe cases of code violation that resulted in reinstatement orders. Mr. Babineau did not make any purchase from Mr. Harris when he was an inmate.
Mr. Babineau had an otherwise unblemished record. He admits his mistake and has shown remorse for his mistake. It would not be fair or just to discharge Mr. Babineau for one moment of poor judgement.
The representative for Mr. Babineau asks that his discharge be withdrawn and substituted with a suspension. He left the length of suspension to the adjudicator’s discretion.
The representative for Mr. Babineau referred to the following authorities and cases:
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Decision Page 15 (1) John Cudmore and Treasury Board (Solicitor General - Correctional Service Canada), Board File 166-2-22426, March 10, 1993, (Brown).
(2) Allison Amos and Treasury Board (Solicitor General Canada), Board File 166-2- 14678, January 7, 1985, (Galipeault), at pages 1, 36, and 37.
(3) M.A Matyas and Treasury Board (Solicitor General - Correctional Service Canada), Board File 166-2-13483, October 29, 1982, (Steward), at page 33.
(4) Kirk Parsons and Treasury Board (Solicitor General - Correctional Service Canada), Board Files 166-2-27007 and 166-2-27006, June 24, 1996, (Simpson).
(5) Allan R Francis and Treasury Board (Solicitor General - Correctional Services Canada) Board File 166-2-24111, October 7, 1993, (Turner).
(6) Sean Wells and Treasury Board (Solicitor General - Correctional Service Canada), Board File 166-2-27802, November 25, 1997, (Simpson).
Mr. Tynes requested that the grievance be allowed. Conclusion and reasons for the decision Mr. Babineau was terminated for having an unauthorized relationship with an offender at the Dorchester Penitentiary. The onus in such a case is on the employer to show on a balance of probabilities that it had reasonable grounds to terminate Mr. Babineau.
As a general rule, an adjudicator who reviews the discharge of an employee should uphold that action where he is satisfied that, at the time that the employer did so, it had just and sufficient cause to dismiss the employee. On the other hand, the adjudicator should allow the grievance where the employer did not have just and sufficient cause to dismiss the employee. (See Cartier Mining v. Quebec, S.C.C. file 23960, July 20, 1995, at page 6.)
Board Member Galipeault in Amos, supra, determined that unauthorized relations between correctional staff and offenders are serious infractions, (at page 37). Accordingly, I believe that Mr. Babineau’s actions constituted a serious violation of the
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Decision Page 16 Code of Discipline and the Standards of Professional Conduct and do warrant serious discipline.
In this instance Mr. Babineau does not dispute the evidence of the employer. Rather, he says that what he did does not warrant his discharge. He initiated contact with the offender while he was in the penitentiary. After talking to Mr. LeBlanc, he understood that it was wrong to make the purchase from an inmate. Yet, he continued his pursuit of it while Mr. Harris was in the half-way house. He then bought the rifle from Mr. Harris while he was on parole. He continued to pursue his transaction to get the Leopold scope after Mr. Harris was re-incarcerated back at Dorchester.
Such actions could easily lead to serious breaches of security in the institution. Perhaps Mr. Babineau would feel that he has an obligation to the offender. On a personal level the offender knows that he has an “in” with the officer who bought his gun. Indeed, he will believe that the officer owes him one, or that he will cut him more slack in the future. In fact, Mr. Babineau saw the first indications of Mr. Harris’ spin on his connection with Mr. Babineau. The word around the penitentiary in September 1997 was that they were “good buddies.” Even Mr. Babineau recognized that it was not good for him to have an offender talk him up. He told Mr. Harris to stop using his name. He did not want people to get the “wrong” impression. However, the employer already knew from the wiretaps that Mr. Babineau had been involved in something suspicious.
What are the principles as outlined in the precedents? The grievor in Francis, supra, became involved in a sexual relationship with the mother of an inmate. He had known her some 10 years earlier. The adjudicator upheld the discharge.
In Wells, supra, a close friend of the grievor was known to police as a drug trafficker. The grievor claimed that he did not know that his friend was a dealer. The adjudicator determined that there was too much evidence of a close connection between the grievor and his friend to believe that the grievor did not know of his friend’s criminal connection. His discharge grievance was denied. By maintaining his friendship with the dealer, the grievor’s conduct (at page 17) “so damaged his credibility as to make him ineffective in carrying out his duties as a correctional
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Decision Page 17 officer. … the bond of trust between the grievor and his employer has been irreparably damaged.”
In Parsons, supra, the grievor bought a truck from an inmate. He knew that he should not have done so. His continuing denial that he had entered into a transaction with (an inmate), “deprives him of any consideration in respect of mitigation of penalty notwithstanding his 15 years of service and his clean disciplinary record,” (at page 17).
In Cudmore, supra, the grievor had loaned money to an ex-offender. He also rented an apartment to the girlfriend of another ex-offender. Like Mr. Babineau, he claimed that he had not received adequate orientation on the Code of Discipline. Like Mr. Babineau, he had also relied on the opinions of someone who was not his supervisor. However, since Mr. Cudmore, (as did Mr. Babineau), had received a copy of the Code of Discipline, the adjudicator did not accept the grievor’s excuse. The adjudicator maintained the discipline, but reduced the penalty to three days from the eight days imposed by the employer.
In Amos, supra, the grievor was a shop instructor at Dorchester. He had purchased two safes from an offender without authorization. The rules of the institution clearly stated that staff could not purchase goods directly from the offenders. They had to have authorization before they could make such purchases. When an inmate wished to sell an item that he had, he would bring the item to a witness at the Hobby Office. The staff member, who wanted it, would then have to get a gate pass to carry the item out of the institution.
Mr. Amos had not followed the rules. He had contacted the inmate directly. Then he removed the items from the institution without getting a gate pass. The inmate had not gone through the Hobby Office.
The adjudicator considered the unauthorized relationship between Mr. Amos and the offender as a serious infraction. Yet, he concluded that the discharge was too severe a penalty. He considered that a one-year suspension would be a sufficient penalty to make Mr. Amos think twice before not following the rules of the institution in the future.
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Decision Page 18 Can I form the same opinion for Mr. Babineau in this instance? I have done so. Mr. Babineau has 16 years service with no prior discipline history. He did make a purchase. It was unauthorized. It was not a spur of the moment transaction. It developed over a period of two years. It is obvious to this observer that Mr. Babineau was blinded by what he perceived to be a good deal for him.
Mr. Babineau’s representative says that the employer preferred Mr. Harris’ story over that of the grievor. Yet, neither Mr. Harris, nor his dubious character, is before me in this adjudication. Rather, it is Mr. Babineau and Mr. Babineau’s actions alone that resulted in the discipline, his discharge, the grievance, and the adjudication hearing in this case.
Nevertheless, I believe that a one-year suspension without pay or benefits should be enough for Mr. Babineau to realize the seriousness of his actions. He has admitted guilt and is remorseful for his actions. I do not believe that Mr. Babineau is beyond rehabilitation.
I have comments on a couple of issues for Mr. Babineau and the employer. I begin with my comments to the employer.
I believe that the employer placed undue emphasis on the fact that Mr. Babineau should have known that the rifle that he purchased from Mr. Harris might have been stolen. The employer claims that Mr. Babineau knew Mr. Harris was a notorious liar and had a record of break and enter. Furthermore, they say that Mr. Babineau should not have accepted Mr. Harris’ word that the rifle was not stolen.
I agree that, if a correctional officer gets involved in a venture that includes property that he knows is stolen, he does so at his own peril for such action calls into question the very foundations of his commitment to the justice and correctional system. For a correctional officer to deal in stolen property with an offender brings disrepute to the correctional system. In this instance had Mr. Babineau known that the rifle was stolen and made the purchase in spite of such knowledge, there would be no redeeming feature to reinstate him to his employment.
However, to say that Mr. Babineau should have known that the gun was stolen does not add to the seriousness of his misconduct. Certainly, his “good deal” made
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Decision Page 19 him oblivious to the possibility that it was stolen. We can say that he exercised poor judgement when he accepted Mr. Harris’ word that it was not “hot”. Mr. Babineau was foolish and unwise to do so, but I do not impute improper motives because he failed to exercise better judgement before he acted. Regardless of his frame of mind on that issue, the important question is whether discipline would have been warranted if the rifle were not stolen. My answer would be still the same if Mr. Harris had been the legitimate owner of the rifle. The admonition to Mr. Babineau would still remain: “Do not get into unauthorized relationships with offenders, ex-offenders or their families or friends.” Don’t buy from or sell to any of them. At the very least you should get approval from your supervisor before you attempt to do so.
The Standards of Professional Conduct and the Code of Discipline are very clear that a correctional officer is not to engage in “personal business transactions with an offender or ex-offender or the offender’s or ex-offender’s friends or relatives.” Although by extension these rules would also disallow a correctional officer from purchasing stolen goods, it is of no particular importance that Mr. Babineau should have surmised that the rifle was stolen property. That it was stolen reinforces the reasons for ensuring that the employees not enter into unauthorized relationships. It renders a correctional officer open to charges of real or potential favouritism. It leaves him subject to the whim of the offender, who expects favours in return.
In this instance I believe Mr. Babineau when he says that he did not know that the rifle was stolen. Since 1995, he was blinded by the prospect of getting a good deal. Still, the fact that Mr. Babineau purchased the rifle from an offender on parole warrants discipline. It warrants a one-year suspension when such purchases are not authorized by Mr. Babineau’s supervisor.
On the issue of Mr. Babineau’s perception that he did not know the rules, the evidence is that he received the Standards of Professional Conduct and Code of Discipline when their new versions came out in 1993. He chose not to read them. That was his own personal decision. Mr. Babineau suggests that he did not think that buying a rifle from an ex-offender was wrong. Common sense should have told Mr. Babineau not to pursue the purchase of a rifle, especially after Mr. LeBlanc had told him that he could lose his job if he went through with it. He says that he trusted Mr. LeBlanc when he told him not to get involved while the offender was incarcerated.
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Decision Page 20 He adds that he and the other correctional officers should have received instructions and explanation of the rules. In keeping with the decision in Cudmore I reject Mr. Babineau’s reliance on the fact the he did not receive instructions.
Mr. Babineau adds further that Standard Four, supra, is ambiguous. Yet, he undoubtedly sees himself as a professional. To suggest that the text as outlined above is ambiguous stretches the imagination. Mr. Babineau knew early on that he should not deal with Mr. Harris while he is in the institution. He should have been similarly circumspect about any personal dealings with the offender no matter where he was.
Mr. Babineau tries to cloud the issue by saying that he was not conducting a “business” pursuit with Mr. Harris. It was not a “personal business” venture. However, there is no magic in the use of the word “business” in the Standards of Professional Conduct. Mr. Babineau was making a buy for his own personal benefit or business. It was wrong for him to do so.
As was noted earlier, Mr. Babineau admits that it was wrong to pursue the purchase of the rifle. He shows signs of remorse for his actions. Mr. Babineau must understand that his initial silence and denial of unprofessional acts were not beneficial to his case. Mr. Babineau had prior opportunity to admit his involvement with Mr. Harris. He changed his version of the facts on various occasions. The most notable occurred when he provided different versions in the interviews with Mr. Davidson and Mr. Mills.
In Francis, supra, at page 26 the decision notes: ... an employee who receives a disciplinary measure must provide the employer, in due course, with all the explanations he or she wishes to present in order to justify or mitigate his or her actions.
What I also find troubling in this instance is the fact that Mr. Babineau took the time to discuss with Mr. LeBlanc his intention to purchase the rifle from an inmate. The Standards of Professional Conduct clearly states that “any doubts or concerns staff have involving relationships with offenders should be discussed with the supervisor”. If Mr. Babineau was concerned about the purchase of the rifle from an inmate, he should have been equally concerned about the purchase of the same rifle from a recently released offender. Public Service Staff Relations Board
Decision Page 21 It is not necessary to clarify the Standards of Professional Conduct so as to identify at what point it would be acceptable to purchase goods from an ex-offender. In this instance, it should be more than clear that purchasing goods, from an ex-inmate on parole, falls within the category of an unauthorized relationship. The Correctional Service provides the forum for a Correctional Officer to inquire if his intended actions might be beyond the limits of acceptability. He talks to his supervisor, not a fellow officer.
Correctional officers should understand, or at the very least common sense demonstrates, that correctional officers are not to have dealings with offenders because such conduct can have significant security implications.
The most obvious conclusion in situations such as this is that a correctional officer would become obligated to the offender in return for an advantageous transaction. It would not be long before other offenders would find out about such a transaction. It could, therefore, compromise the position and security of not only the correctional officer involved, but also the security of the other correctional officers at the institution.
In the final analysis this case is a classic example of what can happen when a correctional officer decides to take it upon himself to pursue an unauthorized relationship with an offender. Mr. Babineau’s name has been thrown around the penitentiary to the effect that he was a good friend with one of the offenders. The implications of these events could have been a lot worse than they were.
On a secondary note, I also recognize the resolution of the situation with Mr. Hicks’ improprieties. Mr. Mills testified that Mr. Hicks approached him and asked if he could submit his resignation to avoid disciplinary proceedings. Mr. Hicks was allowed to retire without a negative mark on his record.
Mr. Mills also said that such as result is permitted within the Correctional Service when an employee becomes involved in an unauthorized relationship with an offender. I note that Mr. Mills has left this offer open for Mr. Babineau.
In all the circumstances of this case, combined with Mr. Babineau’s 16 years of previously unblemished service, Mr. Babineau may wish to accept this offer from
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Decision Page 22 Warden Mills to avoid the negative mark that a one-year suspension, without pay or benefits, would have on his work record.
If Mr. Babineau does not accept the choice of early retirement I allow the grievances on the following terms.
I determine that the discharge of Mr. Babineau was too severe in the circumstances. I hereby substitute a one-year suspension without pay or other benefits in place of the discharge. He is to be considered as reinstated effective on November 18, 1998. Mr. Babineau is to be reimbursed for his pay and benefits that he has lost since November 18, 1998.
I remain seized of jurisdiction in the event there are any problems in implementing this decision.
Donald MacLean, Board Member.
Moncton, April 9, 1999.
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