FPSLREB Decisions

[1]   On August 22, 2002, the grievor, Richard Simoneau, filed a grievance with his employer because of his dismissal. The grievance was worded as follows:

DESCRIPTION OF GRIEVANCE

[translation] I contest the employer's decision to dismiss (discharge) me effective August 22.

REDRESS REQUESTED

[translation] My immediate reinstatement to my position as a CX I (Correctional Officer) at the Archambault Institution. Reimbursement of my salary and benefits due under my collective agreement.

[2]   This grievance was sent the Public Service Staff Relations Board (the Board) for arbitration on November 9, 2002.

[3]   Mr. Simoneau's behaviour at the time of his arrest on January 27, 2002, and afterwards, for driving under the influence of alcohol and the possession of drugs resulted in an irremediable loss of trust in him by the employer. This dismissal, effective August 22, 2002, is a result of Mr. Simoneau's unacceptable conduct, which:

• could tarnish the reputation of Correctional Service Canada;

• is incompatible with his function as an officer of the law and the mission of Correctional Service Canada; and

• is related to his failure to inform the employer of the misconducts he had been charged with and the suspension of his driver's licence.

[4]   Mr. Simoneau had held the position of a Correctional Officer I (CX-01) at the Archambault Institution for an indeterminate period since August 23, 1999 (Exhibit E-1). He had previously worked with Correctional Service Canada for approximately two years on call.

[5]   The Archambault Institution is a medium security facility. A Correctional Officer I is assigned as required by operational needs and does not hold a fixed position. Such officers normally perform their functions in the presence of inmates, whom they guide as an educator.

[6]   Such officers may be asked to do patrols, controls, searches and interventions with the inmates and escort them outside the facility. They may be required to drive a Correctional Service Canada vehicle under different circumstances, and Standing Order 335 specifies that an officer driving a motor vehicle must have a valid driver's licence for the province and for the type of vehicle (Exhibit E-19).

[7]   On January 27, 2002, at 3:43 a.m., Officers Guy Dussault and Yolaine Tardif of the Sûreté du Québec conducted a check on the vehicle driven by Richard Simoneau after he screeched his tires upon starting up at a traffic light. Following Officer Dussault's request to see his driver's licence, Mr. Simoneau showed him his Correctional Service Canada identification card and his badge (when providing his testimony, Officer Dussault indicated that Mr. Simoneau "flashed" his badge). Mr. Simoneau did not pass the breathalyser (ADA) test, and was placed under arrest and handcuffed after a summary search. Mr. Simoneau displayed an arrogant attitude, telling the police officers that they did not know how to handcuff him properly. During the interrogation at the police station, Mr. Simoneau dropped three vials and a test tube that he tried to conceal with his foot. One of the vials contained approximately 4 ml of a colourless liquid and two others were almost empty, containing only the residues of a colourless liquid. The tube contained a whitish powder. The police officers then informed him that he could be charged for drug possession once the substances were analyzed. Mr. Simoneau indicated that the vials were not his. Between two breathalyser tests, he indicated that he had picked up the vials on the ground at the club. The breathalyser test results were 87 mg for the first one and 83 mg for the second (Exhibits E-12 and E-13). Once the photos and fingerprints had been taken, Mr. Simoneau was released at 5:30 a.m. and given a notice that his driver's licence was suspended until February 11, 2002 (Exhibit E-14).

[8]   During the time that he was in police custody, Mr. Simoneau talked to Michel Coune, an Acting Correctional Supervisor, in a telephone interview at the Archambault Institution through Officer Dussault. He told him that he had been arrested for screeching his tires and exceeding the legal blood alcohol limit. He did not tell the supervisor about the parts related to drug possession.

[9]   When he returned to work, Mr. Simoneau did not inform his supervisor (Luc Goyette) that his driver's licence had been suspended. During the time that his driver's licence was suspended, Mr. Simoneau was assigned to "T" control (control of one of the penitentiary's doors) and was not required to drive a service vehicle. He knew that one of the conditions of employment was to have a valid driver's licence.

[10]   The analyses of the samples of substances taken from Mr. Simoneau by the police revealed that the clear liquid was Butanoic Acid (GHB, commonly known as the date rape drug) and that the powder was Ketamine (listed in Annex F of the Food and Drugs Act) (Exhibits E-17 and E-18).

[11]   On July 4, 2002, two summonses were issued to Richard Simoneau: the first one (Exhibit E-15) was for operating a motor vehicle while impaired by alcohol or a drug (subsections 253(a) and 255(c) of the Criminal Code), and operating a motor vehicle with a blood alcohol level over 80 mg in 100 ml of blood (subsections 253(b) and 255(1) of the Criminal Code), the second for possession of GHB (paragraph 4(1) (6) (b) of the Controlled Drugs and Substances Act) (Exhibit E-16). The facts underlying the summonses were filed on January 27, 2002.

[12]   Correctional Service Canada intelligence services were advised by Sûreté du Québec liaison officers that the summonses were issued to the grievor on July 4, 2002, and copies sent by facsimile. This information was forwarded to Pierre Bernier (Acting Director of the Archambault Institution), who decided to mandate Ninon Paquette (Deputy Director, Management) and Richard Desmeules (Preventive Security Officer) to do a disciplinary investigation into the facts related to the criminal charges brought against the grievor (Exhibit E-2).

[13]   The decision was made to suspend the grievor without pay for the duration of the disciplinary hearing, as of July 5, 2002. Mr. Bernier advised the union representative (Dany Stevens) of this decision and then proceeded to arrange a disciplinary meeting with Mr. Simoneau, in the presence of the union representative and Cynthia Racicot (Acting Deputy Director). At this meeting, Mr. Bernier gave Mr. Simoneau copies of the summonses and advised him of his suspension without pay for the duration of the disciplinary investigation. The notice of suspension (Exhibit E-1), copy of the investigation mandate (Exhibit E-2) and denial of access to the facility (Exhibit E-3) were handed to him after the facts underlying the arrest were related. The facts underlying the accusations were not discussed at this meeting. Management informed the grievor that a representative of the employee assistance unit was available to meet with him if necessary. Mr. Simoneau was then escorted outside the facility after turning in his identification card, keys to the facility and badge.

[14]   Richard Simoneau remained calm during this disciplinary meeting. He had not thought that charges would be brought against him, since he believed that the vials seized by the policy on the night of January 27, 2002, were empty. He was certain that the possession of Ketamine was not illegal. He was stunned by the situation and did not react at the meeting of July 5, 2002.

[15]   After assessing the options for proceeding in this matter with Mr. Simoneau, only Dany Stevens returned to meet with Mr. Bernier and Ms. Racicot, and he had the impression that Mr. Simoneau's case was closed from the point of view of management, whose representatives talked about tearing up the grievor's identity card and closing the case.

[16]   Mr. Simoneau appeared without a lawyer at the Palais de justice de Laval on August 5, 2002, and submitted a plea of not guilty to the charges laid against him.

[17]   At the July 16, 2002 disciplinary hearing, Mr. Simoneau maintained that he had picked up the vials containing the drug off the floor of the club to give them to a friend. This friend allegedly used GHB residues as a sedative to help him sleep. Mr. Simoneau also indicated that the vial containing the Ketamine was full and he wanted to give it to a friend. During the hearing into this grievance, he maintained this version of the facts to protect the female friend who was with him on the evening of January 27, 2002, and he did not want to change the version of the facts reported to the police out of fear of further incriminating himself. At this meeting, Mr. Simoneau was assisted by Mr. Stevens and Céline Lalande (UCCO-SACC-CSN).

[18]   In the workplace, Mr. Simoneau was known to frequent raves and as someone who "hangs out" a lot at clubs. He talked openly to his work colleagues about his evenings out and showed them photos that were taken there. There were no disciplinary measures on Mr. Simoneau's file, who was considered a good employee by his supervisors. He was monitored under the Attendance Awareness Program when the employer felt that he was abusing his sick leave. Congratulatory memos were sent to Mr. Simoneau in April 1998 (fire in one of the cells), September 1999 (extraction of an inmate from a cell) and in November 1999 (use of force and restraint) pointing out the excellent work he had done on those occasions (Exhibit G-2).

[19]   The disciplinary investigation report (Exhibit E-6) was completed at the end of July 2002 and submitted to Pierre Bernier. The report concluded as follows:

[translation]

[...]

CONCLUSION

Mr. Simoneau's testimony does not strike us as plausible in terms of the possession of the drugs he says he picked up off the floor to give to a friend and the fact that he was not certain of whether he had informed his supervisor about the suspension of his permit.

It is evident that Mr. Simoneau, through his behaviour and allegations, tried to mask the truth. In our view, his attitude at the interview constitutes an aggravating factor.

His attitude and behaviour through the misconducts he committed are inconsistent with his role as a correctional officer and officer of the law, as well as with the Mission of Correctional Service Canada.

Richard Simoneau's behaviour and actions in connection with the events of January 27, 2002, have breached the relationship of trust with his employer.

RECOMMENDATION

In light of the conclusions of this investigation, the committee deems that the employer should impose a severe disciplinary measure, not excluding termination of employment.

[...]

[20]   The disciplinary investigation report refers to Standing Order 335 (2002-07-08) (Exhibit E-19), article 7:

[Translation]

[...]

USE OF VEHICLES

Officers who drive vehicles must hold a valid Quebec driver's licence that corresponds to the type of vehicle being driven. The user is responsible for ensuring that he/she has the appropriate licence. Moreover, users shall, at all times, observe the traffic rules both within and outside the perimeters of the facility.

[...]

[21]   The disciplinary investigation against the grievor found that he had contravened rule 2 (conduct and appearance) of the Code of Discipline (Exhibit E-10), which reads as follows:

[Translation]

[...]

2.   RULES OF CONDUCT AND APPEARANCE

Misconducts

An employee commits a misconduct when he/she:

[...]

• behaves in a manner that could tarnish the reputation of Correctional Service Canada, whether or not on duty;

• commits a criminal act or misconduct punishable on summary conviction under a law of Canada or a territory or province, thereby running the risk of tarnishing the reputation of Correctional Service Canada or having a detrimental effect on performance in the workplace;

• omits to inform the supervisor prior to returning to work that he/she has been accused of a criminal infraction or an infraction against another law;

[...]

[22]   It was also found that Mr. Simoneau contravened the rules of the Code of Professional Conduct (Exhibit E-11), specifically the rule stating that:

[Translation]

[...]

2.   RULES OF CONDUCT AND APPEARANCE

The behaviour of a person, whether or not on duty, shall do honour to Correctional Service Canada and the Public Service. All employees shall behave in a manner that enhances the reputation of the profession, through both their words and their actions. As well, when they are on duty, their outside appearance should reflect their professionalism and be consistent with the workplace health and safety standards.

Discussion and applicability

The spirit of professionalism within Correctional Service Canda depends a great deal on the manner in which employees speak, present themselves and dress when on duty. As role models for offenders, employees shall adopt high standards that offenders can respect and try to emulate. Using harmful language, being discourteous towards others or not respecting their opinions could encourage offenders who witness these actions to do the same, and once done, create an atmosphere that is not conducive to healthy interaction. Employees shall ensure that they present themselves, both on and off duty, as responsible and law-abiding citizens.

Employees who commit criminal acts or other serious violations - particularly in the case of repeat offences or misconducts that are sufficiently serious to lead to incarceration - are not representative of the type of behaviour deemed acceptable at Correctional Service Canada, at either the personal or the professional levels. Consequently, any employee charged with a misconduct under the

Criminal Code or another federal, provincial or territorial law shall inform his/her supervisor before returning to work.

Employees may at times have personal problems that affect their performance. Correctional Service Canada owes it to them to provide assistance. Nonetheless, personal problems do not justify behaviour or performance that leaves something to be desired or failure to take the necessary steps.

[23]   Mr. Simoneau claimed that he had not been informed of the rules contained in the Codes of Discipline and Professional Conduct before the disciplinary hearing. The employer had not given him these documents while he was employed.

[24]   The disciplinary investigation report was given to Mr. Simoneau by Mr. Stevens around August 6, 2002. A meeting was held on August 13, 2002, at the request of Yves Fafard, Director of the Archambault Institution, in order to get Mr. Simoneau's version of the facts for the disciplinary investigation report. Dany Stevens (union representative) and Mario Lévesque (management representative) took part in this meeting. Mr. Fafard summarized his understanding of Mr. Simoneau's testimonies as follows (Exhibit E-9):

[Translation]

[...]

Overall, Richard Simoneau recognizes the veracity of the information contained in this investigation report. However, he wants to make the following corrections to his testimony: the three (3) vials were not picked up off the floor but were purchased through other friends to be given to a friend who had problems sleeping. He added that one of the vials was full.

The employee told us about his lawyer's advice not to "open" in order to avoid further incriminating himself, given that what he told us could be used against him in a court of law.

He closed by saying that he "had learned his lesson" and we could be sure it would not happen again. He said that he had been more settled since the incident, which had marked the end of his former lifestyle.

[...]

[25]   These elements were confirmed by the testimonies of Mssrs. Fafard, Stevens and Simoneau at the hearing.

[26]   On August 22, 2002, Mr. Fafard met the grievor to give him the termination of employment letter in the presence of Mssrs. Stevens and Lévesque. The termination was effective August 22, 2002, at 4 p.m. (Exhibit E-5). The employer specified that it seriously doubted the version of facts submitted by the grievor and called for termination of employment based on the facts surrounding the incidents of January 27, 2002, for the following reasons (Exhibit E-5):

[Translation]

[...]

I consider that the misconducts you committed are very serious and totally unacceptable. You behaved in a manner that could tarnish the reputation of Correctional Service Canada. Your conduct was totally incompatible with your role as an officer of the law and the Mission of Correctional Service Canada. You lost all the trust vested in you by your employer.

[...]

[27]   For the employer, the accusations related to drug possession were serious and all the more so for a correctional officer who acts as an officer of the law. In this capacity, such an officer is expected to enforce the law within the penitentiary, particularly among the inmates. The inmates at the Archambault Institution are members of criminal biker gangs, many of them serving time for drug crimes. Under these circumstances, it is unacceptable for the jailer of the inmates to be involved in the criminal world of drugs. Correctional officers would then become easy prey for inmates who are aware of such incidents, which could jeopardize the institution's security.

[28]   The grievor's admissions concerning the possession of the drugs, the fact that he did not notify the institution of the charges against him and the suspension of his driver's licence, the fact that he tried to conceal the incidents and change his version of the facts on several occasions, underlie the employer's loss of trust in Richard Simoneau.

[29]   In an attempt to extricate himself from the situation with the Sûreté du Québec officers by using his position as an officer of the law, Mr. Simoneau tarnished the reputation of Correctional Service Canada before one of the Service's important partners.

[30]   On November 20, 2002, the Court accepted Mr. Simoneau's guilty plea on the infraction for driving after having consumed a quantity of alcohol that raised his blood alcohol level above 80 mg per 100 ml of blood. He was acquitted of possession of drugs, since no evidence was submitted following an agreement about the full set of files between the Crown prosecutor and Mr. Simoneau's lawyer (Exhibit G-3). The installation of a breathalyser on Mr. Simoneau's car enabled him to recover his driver's licence on February 20, 2003.

[31]   A new version of the circumstances leading to the grievor's being in possession of illegal substances was submitted during the hearing into this case. According to this version, the GHB vials were purchased by Marie-Josée Beauvais for her personal use during the evening at the Millénium club. Since she did not have a purse or pocket in which to carry the vials, she asked Mr. Simoneau to hold on to them. Whenever she wanted some, she would ask him. She consumed two of the three containers of GHB. Ms. Beauvais did not mention any purchase of Ketamine during her testimony. According to Mr. Simoneau's testimony, Marie-Josée Beauvais allegedly purchased the Ketamine at the request of a group of female friends who pooled their funds to buy it for another friend. Mr. Simoneau donated part of the $20 of the Ketamine's purchase price and kept the drug on his person. He did not think to give the vials to Marie-Josée Beauvais when he drove her home in his car at the end of the evening.

[32]   Mr. Simoneau does not think that charges should have been brought against him. On the one hand, he thought that the GHB vials were empty and that the Ketamine was not illegal. Moreover, according to him, summonses are seldom issued when the breathalyser shows less than 100 mg per ml of blood. However, he testified that he panicked at the police station when he realized that he was in possession of these substances.

[33]   Mr. Simoneau submitted that he had learned his lesson and regretted what had happened. He specified that he had changed his lifestyle and no longer took part in raves. He goes to clubs much less often than before and only used drugs once, with his female friend, since the incidents of January 27, 2002. According to him, his use of drugs was occasional, hence never problematic.

[34]   Doctor Serge Lecours, a toxicology specialist, conducted the drug screening tests on Mr. Simoneau between February 26 and April 6, 2003. A first general drug screening test showed up negative, as well as those for amphetamines (including Ecstasy and Speed) and GHB.

Arguments

[35]   For the employer, Mr. Simoneau's behaviour at the time of his arrest demonstrated that he knew he had done wrong. He was not honest with his employer when he attempted to cover up the incident in regard to the possession of drugs. Moreover, his version of the events changed over time. The version he had tried to present at the time of the hearing was no more credible than the others, as the witness brought in to corroborate his testimony did not specify having bought any Ketamine.

[36]   Mr. Simoneau's admission of possession and consumption of drugs was inconsistent with his position as an officer of the law and correctional officer. The security breach he created was undeniable and created an irreparable loss of trust.

[37]   The criteria applied in Millhaven Fibres Ltd, Millhaven Works and Oil, Chemical and Atomic Workers Int, Local 9-670 (1967) 1(A) Union Management Arbitration Cases, 328 apply in this case. In that decision, the employee's behaviour outside the workplace was reason for dismissal in any of the following circumstances:

[...]

1. the conduct of the Grievor harms the Company's reputation or product;

2. the Grievor's behaviour renders the employee unable to perform his duties satisfactorily;

3. the Grievor's behaviour leads to refusal, reluctance or inability of the other employees to work with him;

4. the Grievor has been guilty of a serious breach of the Criminal Code and this rendering his conduct injurious to the general reputation of the Company and its employees;

5. places difficulty in the way of the Company properly carrying out its function of efficiently managing its Works and efficiently directing its working forces[sic].

[...]   

[38]   The criteria in Millhaven (supra) were applied by the Board in Dashney (Commission file 166-2-14177) and again in Flewwelling c. Canada, [1985]   A.C.F. 1129. In Flewwelling, (supra) the Court confirmed the adjudicator's decision regarding the dismissal of a surveillance officer employed by Fisheries and Oceans Canada. The three Federal Court judges indicated that:

[...]

It appears to me that there are forms of misconduct which, whether they are prohibited by regulations or by the Criminal Code or by any other statute, are of such a character that they are readily recognizable by any reasonable person as incompatible and inconsistent with the holding by one involved in such conduct of a public office and in particular of an office the duties of which are to enforce the law. As Chief Justice Dickson recently had occasion to say for the Supreme Court in Fraser v. Public Service Staff Relations Board, unreported, decided on December 10, 1985:

The federal public service in Canada is part of the executive branch of government. As such, its fundamental task is to administer and implement policy. In order to do this well, the public service must employ people with certain important characteristics. Knowledge is one, fairness another, integrity a third.

[...]

[39]   In Boivert (Board files 166-2-25435 and 26200), the adjudicator concluded that the criminal infractions committed by the grievor (theft and possession of stolen goods worth over $1,000), were entirely incompatible with his functions, even barring any publicity and with a clean disciplinary record, especially in the penal area, where the employer must ensure the safety of staff and inmates.

[40]   In Fleming (Board files 166-2-13488 and 12489), the adjudicator concluded that the grievor could not be reinstated into his employment without harming the operations and reputation of Correctional Service Canada, and the correctional facility in particular, once his guilt had been established in terms of his marijuana trafficking.

[41]   The incompatibility of criminal charges with the functions of an officer of the law was used in the decisions in the following cases:

• Kikilidis (Board files 166-2-3180 to 3182)

• Courchesne (Board file 166-2-12299)

• Wells (Board file 166-2-27802)

• Sharma (Board file 166-2-14588)

• Cunningham (Board file 166-2-18834)

• Renaud (Board files 166-2-30897 and 30898)

[42]   The principles applied in the above cases must be applied in this case and the dismissal should be upheld.

[43]   For the union, Mr. Simoneau did not deny possession even though he specified that the items did not belong to him. He notified his employer that he had been arrested with an alcohol blood level above the legal limit. He could not inform the employer of the charges against him since they had not yet been laid. It was only five months after the incidents that the summonses were forwarded to the employer, even before Mr. Simoneau was informed.

[44]   According to Mr. Simoneau's testimony, he believed that the GHB vials were empty and that the Ketamine was not illegal. Thus, he truly believed that he could not be accused of possession. Under these circumstances, it is impossible to conclude that Mr. Simoneau had attempted to mislead the employer by failing to inform it of the events related to possession.

[45]   Mr. Simoneau was not familiar with the Codes of Discipline and Professional Conduct, and he remained under the impression that the incidents related to his private life did not have to be disclosed to the employer. Although his actions may have harmed the reputation of Correctional Service Canada vis-à-vis the Sûreté du Québec, the minimal quantity of drugs of in his possession would mitigate the impact.

[46]   This case must be distinguished from the others cited since there was no publicity related to the incidents. The objectionable acts were not committed in connection with his duties and there was no evidence to show any reaction on the part of his colleagues. The suspension of the driver's licence had no impact on operations since Mr. Simoneau was assigned to a position that did not require a driver's licence for the full duration of the suspension.

[47]   In Jalal (Board file 166-2-27992), both the nature and seriousness of the charges and their impact on the employer's interests had to be considered. It had to be demonstrated that the infraction was serious enough to show that there was incompatibility between the employee's conduct and the continuation of employment. In terms of the employer's reputation, the evidence must be based on more than a fear and demonstrate that it is based on the facts. These factors have not been demonstrated in this case. The evidence does not show that in the future, the grievor could not be trusted. The following decisions are submitted in support of these arguments:

• Re Government of Manitoba and Manitoba Government Employees' Union (Longclaws), (1994) 39 L.A.C. (4th) 409

• Schigol (Board file 166-2-21774)

• Hickford (Board file 166-2-18645)

Reasons for decision

[48]   The evidence clearly demonstrates that, on January 27, 2002, Richard Simoneau was caught driving his car while his blood alcohol level exceeded the legal limit. The Court sentenced him on these grounds (Exhibit G-3). At the time of his arrest, the grievor informed Michel Coune (Acting Correctional Supervisor) that he had been arrested for exceeding the legal blood alcohol level. The employer could easily have deduced that his driver's licence had thereby been automatically suspended. Although the grievor effectively did not inform his employer that his licence had been suspended for 15 days, it appears that there was no resulting harm to operations since he was not required to drive a car during this period.

[49]   Taken in isolation, the suspension of the driver's licence is a factor that could have been accommodated by the employer and does not constitute a disciplinary factor that would lead to a disciplinary measure as severe as dismissal.

[50]   The consequences of the drug possession strike me as more serious. On the one hand, the different versions provided by Mr. Simoneau to explain his possession of GHB and Ketamine are not very credible and the circumstances surrounding his possession cannot be deemed to be mitigating. Essentially, Mr. Simoneau clearly admitted to possession and displayed a behaviour that showed a great deal of recklessness and very little maturity. He clearly knew that the possession of these substances, even in small quantities, was illegal and could have serious consequences for his employment. When caught by the police officers, he tried to get out of the bad situation by flashing his correctional officer identification and badge, clearly seeking the leniency of his fellow "officers of the law".

[51]   His attempts to free his wrists from the handcuffs when they were secured and when he was in the police car, as well as his attempt to get rid of the compromising vials in the interrogation room, confirm that Mr. Simoneau was well aware of the seriousness of the situation. I do not believe his explanation that he did not mention the drug-related aspects when talking to Mr. Coune because he did not think that charges would be laid. In fact, even though he testified that he believed the vials to be empty, his panicked efforts to get rid of them or explain their presence demonstrated that, on the contrary, he was clearly aware that he had illegal drugs (GHB and Ketamine) in his possession. Thus, the fact that he omitted to inform his employer of the possession at the time of the January 27, 2002 telephone conversation was clearly an attempt at camouflage. Even if he did not know the rules in the Codes of Discipline and Professional Conduct that were only mentioned to him during the subsequent disciplinary hearing, he was aware that the possession of drugs was incompatible with his functions as a correctional officer with an important responsibility to enforce the law. Under these circumstances, the grievor's ignorance of the Codes of Discipline and Professional Conduct cannot constitute mitigating factors.

[52]   At the disciplinary investigation, he continued to claim that the vials were not his and that he had picked them up off the floor at the club. However, at that point he confirmed that three of the vials contained GHB and that another contained Ketamine. I fail to understand how it would be better if these drugs were in his possession for someone else. On the contrary, his declaration only aggravated the situation by undermining his credibility through an effort to conceal the facts so that he would supposedly not further incriminate or incriminate his female friend.

[53]   At the July 5, 2002 meeting with Mr. Fafard, Mr. Simoneau did not provide any explanation regarding the summonses of which he received a copy from Mr. Fafard. His silence suggested that he was stunned by the accusations. For the employer, his calmness instead suggested that he did not understand the seriousness of the situation. While I can understand that it might be surprising to learn through your employer and more than five months after the police arrest that summonses had been issued against you, the absence of any defence or excuse seems rather to demonstrate that Mr. Simoneau believed himself to be in an unavoidable situation and that he could not do anything to change it.

[54]   Mr. Simoneau and his union representative interpreted the attitudes of the employer's representatives at this meeting and in the moments following it as a final, irrevocable and non appealable judgement. Surely they both saw that the employer deemed the infractions to be extremely serious. Moreover, the employer would not have proceeded with the disciplinary investigation and heard Mr. Simoneau on two subsequent occasions if it had really been convinced of his guilt on July 5, 2002. Instead, it would have immediately dismissed him at this meeting.

[55]   After the disciplinary hearing and given the recommendation for "strict disciplinary measures, not excluding dismissal," Mr. Simoneau changed his version of the facts at the meeting with Mr. Fafard on August 22, 2002. He specified that he had obtained the drugs through friends for a third party and no longer that he had picked them up on the ground. He was thereby attempting to give credibility to an explanation deemed entirely unrealistic by the investigation committee. He tried to save his job by attempting to hide behind his lawyer's advice not to incriminate himself any further and by indicating that he had learned his lesson. The employer has not excused the actions he was charged with since it considers that Mr. Simoneau's attitude and explanations at this stage of the case are not credible.

[56]   Faced with the new explanation provided at the hearing about the fact that Marie-Josée Beauvais was the one who had purchased the drugs, either for her own use or to give to a friend, I can only conclude that the employer was perfectly justified in dismissing Mr. Simoneau's credibility. Given such a succession of different explanations concerning the events, like the employer, I am unable to attach any credibility to any of them in terms of the circumstances leading to Mr. Simoneau's possession of the illegal substances.

[57]   The facts of possession reported by the Sûreté du Québec officers have not been contradicted by Mr. Simoneau or the other testimonies given at the hearing and the implied admission confirms the possession of drugs.

[58]   Under these circumstances, the employer's loss of trust in Mr. Simoneau is strongly motivated and clearly supports the fact that nothing could restore it. It is quite clear that, given this loss of trust, Mr. Simoneau cannot properly assume his functions as a correctional officer in a penal situation, where the notion of trust lies at the very roots of the institution's security system.

[59]   I consider that the mere possession of even a small quantity of drugs renders the correctional officer incapable of assuming his duties of supervision, guidance and rehabilitation, which he must perform with the inmates, many of whom are incarcerated for drug-related crimes.

[60]   Chief Justice Thurlow and Judges Stone and MacGuigan of the Federal Court of Appeal indicated in Flewwelling (supra) that the forms of misconduct "are of such a character that they are readily recognizable by any reasonable person as incompatible and inconsistent with the holding by one involved in such conduct of a public office and in particular of an office the duties of which are to enforce the law". I believe that the possession of GHB and Ketamine are misconducts that are incompatible and inconsistent with the exercise of the functions of a correctional officer. The fact that the Court did not charge Mr. Simoneau for drug possession does not in any way minimize the seriousness of the misconduct to which he has admitted.

[61]   It is clear that Mr. Simoneau's attitude during the arrest tarnished the reputation of Correctional Service Canada vis-à-vis the Sûreté du Québec, when he was caught driving his car with a blood alcohol level above the legal limit and in possession of illegal drugs. By using his status as a correctional officer to attempt to extricate himself from this situation, he tarnished the reputation of all correctional officers vis-à-vis the Sûreté du Québec 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.

[63]   After reviewing all the evidence filed at the hearing and considering the testimonies given, I conclude that the employer demonstrated that Mr. Simoneau did commit the acts of which he was accused and that prompted the disciplinary sanction applied to him. I see nothing that could mitigate the seriousness of the actions of which Mr. Simoneau has been accused. For the above-cited reasons, I consider that dismissal is a reasonable penalty under the circumstances.

[64]   Consequently, the grievance is denied.

Léo-Paul Guindon,
Board Member

OTTAWA, July 4, 2003

P.S.S.R.B. Translation