Date: 20230209

File: 566-02-43760

 

Citation: 2023 FPSLREB 12

Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

BETWEEN

 

Ian Guillemette

Grievor

 

and

 

DEPUTY HEAD

(Correctional Service of Canada)

 

Respondent

Indexed as

Guillemette v. Deputy Head (Correctional Service of Canada)

In the matter of an individual grievance referred to adjudication

Before: Marie-Claire Perrault, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievor: Charlie Arsenault-Jacques, counsel

For the Respondent: Alexandre Toso, counsel

Heard by videoconference,

July 18 to 21 and November 24 and 25, 2022.

(Written submissions filed December 16 and 23, 2022.)

[FPSLREB Translation]

REASONS FOR DECISION

FPSLREB TRANSLATION

I. Anonymization request

[1] This decision is about a grievance challenging a termination. At the end of the hearing, Ian Guillemette (“the grievor”) requested that the Federal Public Sector Labour Relations and Employment Board (“the Board”) anonymize his file and that the style of cause include only his initials. I asked the parties to make their submissions to me in writing.

A. Submissions

1. For the grievor

[2] The grievor received a conditional discharge after pleading guilty to two counts. He was terminated due to his guilty plea. Therefore, his court record is central to the Board’s decision on his grievance challenging his termination.

[3] The Criminal Records Act (R.S.C., 1985, c. C-47; CRA) provides at s. 6.1 that three years after a conditional discharge, it is prohibited to disclose the existence of the sentence except in situations that the CRA specifies. In addition, the person subjected to that sentence may then submit an Application for no-disclosure of information contained in computerized records in criminal matters so that any information relating to the discharge or the charges laid becomes inaccessible to the public.

[4] The grievor received a conditional discharge on June 11, 2021, after pleading guilty to two counts. He intends to make an application for no-disclosure of information once the three-year period is over. To preserve the protection that the CRA offers him, he requests the anonymization of all Board documents related to the grievance in file no. 566-02-43760 that could identify him.

[5] Specifically, the grievor requests the following:

1) that the style of cause include only his initials;

2) that any information in the Board’s records that could identify him (name, email and residential addresses, telephone number) be deleted; and

3) that certain documents adduced at the hearing (about the police investigation, the discharge conditions, and the grievor’s certificates) that cannot be redacted be sealed.

 

[6] The grievor acknowledges the importance of openness in judicial proceedings, which has been repeatedly affirmed by the jurisprudence and is reflected in the Board’s policy (Policy on Openness and Privacy). However, in some circumstances, deviating from that principle is appropriate, based on the test that the Supreme Court of Canada developed and that it reworded recently in Sherman Estate v. Donovan, 2021 SCC 25 at para. 38, as follows:

(1) court openness poses a serious risk to an important public interest;

(2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,

(3) as a matter of proportionality, the benefits of the order outweigh its negative effects.

 

[7] For a discharge, the CRA allows removing charges and sentence pronouncements from the public domain. The Federal Court (in E.S. v. Canada (Attorney General), 2017 FC 1127) and the Board (in N.L. v. Treasury Board (Department of National Defence), 2022 FPSLREB 82) have found that given the objectives of rehabilitation and societal reintegration endorsed by the no-disclosure mechanism in s. 6.1 of the CRA, it is preferable to grant anonymity to applicants engaged in employment-related proceedings.

[8] The same reasoning should apply in this case. The rehabilitation that the CRA allows is an important public interest. The grievor quotes as follows from the Board’s conclusion in N.L., at para. 71:

[71] To disclose the grievor’s identity with respect to his conviction and the charges that led to it, or to make that information publicly available, would be contrary to the important interests that [the CRA] seeks to protect....

 

[9] As in N.L., the conviction and charges are central to the grievor’s grievance, which this decision is about. It is not possible to shed light on all the facts without discussing the Court’s sentence. Thus, anonymization is the only way to preserve the protection that the CRA offers.

[10] The application is limited. The decision will be public. The documents will remain accessible to the public while redacting anything that could identify the grievor.

[11] The grievor concedes that his criminal record has not yet been suspended, which will occur three years after the conditional discharge was granted under s. 6.1 of the CRA. In N.L., the discharge was absolute, so the suspension occurred after one year, when the Board was already seized with the anonymization request. If the Board’s opinion is that the consequences in the CRA must wait for the suspension to take effect, then the grievor requests that the anonymization be done on the third anniversary of the discharge; i.e., on June 11, 2024.

2. For the employer

[12] The employer opposes the anonymization request because it is contrary to the principle of openness in court proceedings. Furthermore, the situation does not meet the three parts of the Supreme Court’s test in that there is no serious risk to an important public interest; there are other, less-intrusive ways to publicize court proceedings; and the grievor did not establish that the benefits of the order outweigh the negative effects.

[13] The public nature of judicial and quasi-judicial proceedings cannot be minimized, which is a fundamental principle of our justice system.

[14] The employer agrees that the three-part test in Sherman Estate should apply in this case. In its view, the grievor did not meet the requirements of any of the parts.

[15] There is no risk to an important public interest. It is not enough to provide a personal benefit to justify an anonymization request. The grievor did not demonstrate any risk to the public interest that would arise from publishing his name. His current and former employers are aware of his criminal record.

[16] According to the employer, there is no reason to apply in advance the consequences of suspending the criminal record. Since the three-year period has not yet elapsed, the grievor is not entitled to the benefit of protection from the disclosure of legal information. On that point, it cites the Supreme Court of Canada’s decision in Montréal (City) v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2008 SCC 48, at paragraph 18 in particular, which reads as follows:

[18] Moreover, since the protection against the disclosure of information that the CRA affords a person granted a conditional discharge is effective only once three years have elapsed, there is no basis for concluding that a person who is discharged under s. 730(1). Cr. C. benefits from the effects of a pardon as soon as the order of discharge is made.

 

[17] According to the employer, s. 6.1 of the CRA has no impact on the Board and its work as the Board is neither a federal department nor federal agency as defined by law.

[18] According to the Board’s usual practice, the grievor’s personal information may be redacted. Anonymization is not necessary and is contrary to the principle of openness.

[19] Finally, the grievor did not demonstrate that the benefits of anonymization outweigh the negative effect of a confidentiality order.

B. Decision on the anonymization request

[20] The confidentiality order is granted according to the test that the Supreme Court of Canada developed in a series of cases, the most recent of which is Sherman Estate. Both parties applied that decision (with different conclusions), so I will not return to the test.

[21] Before applying the test to the facts of this case, it is important to reiterate, as the Supreme Court did repeatedly in Sherman Estate, the importance of the principle of openness in judicial and quasi-judicial proceedings as confirmed in the Board’s Policy on Openness and Privacy. Generally speaking, hearings are public, and decisions bear the names of those asserting their rights before the Board.

[22] An exception to that important rule is the confidentiality order, in whatever form it takes. Therefore, it must be granted with moderation and care.

[23] The parties presented to me two recent Board decisions involving anonymization requests: N.L. and a decision that has not yet been published.

[24] As will be seen in this decision on the grievance, the circumstances of the anonymization request in N.L. are similar to the those of the grievance of which I am seized. In both cases, a grievor pleaded guilty to a criminal offence that was directly related to the termination ground that was the subject of a grievance referred to the Board for adjudication.

[25] The second decision is currently subject to a judicial review application before the Federal Court of Appeal. The applicant requested that it not be disclosed in the meantime, and the Board granted the request. In that decision, the anonymization request, based on the protection of dignity and privacy, was denied, mainly because means that infringe less upon the principle of openness in court proceedings could be used to protect the applicant’s privacy interests.

[26] The facts in this case are more similar to those in N.L. In that decision, the Board examined the interaction between the CRA and the proceedings before it in the framework of a grievance hearing.

[27] The CRA provides for the no-disclosure of information about a court-ordered discharge. In an absolute discharge, after one year, the person receiving it may make an application for no-disclosure of information relating to the charges and the granted discharge; for a conditional discharge, the waiting period is three years.

[28] Non-disclosure is binding on federal organizations. In N.L., the Board judged it not necessary to determine whether the CRA legally bound it. Instead, what is important is that the CRA’s objective is to minimize a criminal record’s impact by providing protection. Disclosing the grievor’s identity would be contrary to the intention of the CRA’s relevant provisions.

[29] Therefore, it is an important public interest that should be protected in that it is a matter of respecting the statutory regime applicable to the stipulations relating to a criminal record in the event of a discharge. I do not see how I could depart from the Board’s conclusions in N.L.; namely, the confidentiality that the CRA assures is an important public interest because beyond an individual’s interests, it generally promotes rehabilitation and societal reintegration.

[30] However, there is one important distinction. In N.L., the discharge was absolute, so the time frame was one year, and s. 6.1 of the CRA was already applicable. In this case, since the discharge is conditional, the criminal-record suspension takes effect after three years.

[31] The employer argues that it means that for the moment, the grievor cannot benefit from anonymization, which would be the logical outcome of the application for no-disclosure of information related to the discharge. In fact, the grievor is prepared to concede that point and requests that if the anonymization is not granted immediately, it be granted after June 11, 2024 (three years after the conditional discharge).

[32] In Montréal (City), the Supreme Court stated that the advantages of a pardon do not take effect until the conditional sentence ends. In that case, it was a matter of determining the effect of a pardon (granted automatically by the effect of a discharge, given the lack of a conviction) on protection from discrimination under human rights laws. Since with conditional discharges, pardons take effect only after three years, it could not be argued that it was granted before that period.

[33] Similarly, s. 6.1(1) of the CRA does not yet apply to the grievor as the conditional discharge period it provides has not yet elapsed. Consequently, the important public interest of complying with the stipulations of a public-order Act does not yet exist.

[34] However, following the reasoning in N.L., it will apply once the three-year period ends. The decision may be anonymized then.

[35] The grievor also requested sealed the documents that cannot be redacted and that could identify him. They are not essential for understanding this decision on the grievance. However, in keeping with the spirit of record anonymization, I believe that they must be sealed if the grievor requests it, once the time limit set out in s. 6.1(1) of the CRA elapses.

[36] The request for anonymization, redaction, and sealing has merit but is premature. The grievor may submit it to the Board once the three-year period elapses.

II. Individual grievance referred to adjudication

[37] On November 15, 2021, the grievor referred to adjudication before the Board a grievance challenging his termination for disciplinary reasons on August 5, 2021.

[38] The grievor worked as a correctional officer at the CX-02 group and level for the Correctional Service of Canada (CSC). Although the Treasury Board of Canada is the legal employer, for the purposes of this decision, the CSC is designated as the employer, since the Treasury Board delegated to the CSC its human-resources-management powers.

[39] The grievor was charged with 14 counts related to the storage of firearms and ammunition and the possession of a prohibited weapon and devices. Eventually, he pleaded guilty to the possession of a prohibited device and weapon. He was acquitted of all the other charges and received a conditional discharge for the two counts for which he pleaded guilty.

[40] The grievor was then terminated for violating the Code of Discipline and the Values and Ethics Code for the Public Sector.

[41] In a disciplinary termination case, the employer must establish that it had a valid reason to terminate the grievor. After hearing the evidence, I find that the employer had no valid reason. Therefore, for the following reasons, I allow the grievor’s grievance and order his reinstatement, along with a 20-day suspension.

III. Summary of the evidence

[42] At the beginning of the hearing, the parties filed a joint statement of facts, which I have reproduced as follows:

[Translation]

1. As of the events that led to the grievance, Ian Guillemette (from here , “the grievor”) was an indeterminate correctional officer II (CX-02) with the Correctional Service of Canada (from here on “the CSC”). The applicable CX group collective agreement is attached to Tab 1 of the book of documents. The grievor’s offer letter at the CX-02 level is attached to Tab 2 of the book of documents.

2. Under the offer letter, the grievor had to adhere to the Values and Ethics Code for the Public Sector. It also required that he continue to adhere to the Code of Discipline as well as the Standards of Professional Conduct. The Values and Ethics Code for the Public Sector is attached to Tab 3 of the book of documents. Commissioner’s Directive 060 - Code of Discipline, including the Standards of Professional Conduct, is attached to Tab 4 of the book of documents.

3. A correctional officer II work description is attached to Tab 5 of the book of documents. As a correctional officer II, the grievor was a peace officer.

4. In September 2019, the grievor was working at the medium-security La Macaza Institution.

5. On September 23, 2019, the grievor placed an order on the online shopping site wish.com, which notably included the following items: [The statement reproduces the advertisement and an image of solvent traps, of which the grievor allegedly ordered two. They include a metallic tube, baffles to insert into the tube, and caps.]

6. On October 9, 2019, a Canada Border Services Agency (CBSA) employee intercepted a package from China addressed to the grievor.

7. The Royal Canadian Mounted Police (RCMP) made a controlled delivery to the grievor’s residence on October 30, 2019. He was arrested, and 31 pieces of evidence were seized as described in the “Evidence Report” attached to Tab 6 of the book of documents.

8. Patrick Généreux, Acting Warden of La Macaza Institution, suspended the grievor with pay from October 31, 2019, to November 6, 2019, as described in the letter attached to Tab 7 of the book of documents.

9. Guy Poudrier, Warden of La Macaza Institution, suspended the grievor without pay indefinitely effective November 7, 2019, as described in the letter attached to Tab 8 of the book of documents.

10. On November 13, 2019, Guy Poudrier issued terms of reference for a disciplinary investigation and a convening order. The investigation terms of reference are attached to Tab 9 of the book of documents. The convening order and the proof that it was sent to the grievor are attached to Tab 10 of the book of documents.

11. Guy Poudrier maintained the grievor’s suspension without pay and informed him of it by letters dated December 2, 2019, December 20, 2019, January 31, 2020, and February 21, 2020. The letters are attached to Tab 11 of the book of documents.

12. On or around December 19, 2019, the investigators tasked by Guy Poudrier, Marie-Ève Charest and Sylvain Gagnon (from here on “the investigators”), met with the grievor. A copy of the form “Rights, Privileges and Cautions” that the grievor signed at the meeting is attached to Tab 12 of the book of documents.

13. On March 13, 2020, Guy Poudrier ended the suspension without pay during the grievor’s investigation of the grievor, who was assigned to administrative tasks at the minimum-security Archambault Institution in Ste-Anne-des-Plains effective March 16, 2020.

14. On or around July 22, 2020, the grievor was charged with 14 counts. The summons detailing the 14 counts is attached to Tab 13 of the book of documents.

15. The grievor was absent from work for medical reasons from July 24, 2020, to March 31, 2021. He provided medical notes, which are attached to Tab 14 of the book of documents.

16. In September 2020, the grievor appeared before the Court of Quebec for the charges. The case was then successively postponed to November 2020, January 2021, March 2021, May 2021, and finally June 2021.

17. In March 2021, the grievor’s attending physician authorized his return to work as of March 30, 2021. In support of his return to work, the grievor emailed Colette Rochon, Correctional Manager, Scheduling and Deployment, at La Macaza Institution. The email is attached to Tab 15 of the book of documents.

18. Guy Poudrier sent the grievor a letter dated April 27, 2021, and a copy of the preliminary investigation report. In the letter, Guy Poudrier asked the grievor to provide his comments by May 7, 2021. The letter and the preliminary investigation report are attached to Tab 16 of the book of documents.

19. On or around May 6, 2021, the grievor emailed his comments on the preliminary investigation report to Guy Poudrier and included an attachment. The email and comments are attached to Tab 17 of the book of documents.

20. On May 7, 2021, Guy Poudrier sent the grievor’s May 6, 2021, email and its attachment to the investigators. The email is attached to Tab 17 of the book of documents.

21. The grievor mailed a document entitled “Evidence” to Guy Poudrier, who received it on May 7, 2021. The “Evidence” document is attached to Tab 18 of the book of documents.

22. On June 11, 2021, the grievor pleaded guilty to two counts and was acquitted of the remaining 12 counts. Lépine J. granted the grievor a conditional discharge under s. 730 of the Criminal Code. The discharge conditions were 18 months of probation, 100 hours of community service, and paying $500 to a charity, the United Way. The transcripts of the June 11, 2021, hearing before the Court of Quebec are attached to Tab 19 of the book of documents. The court file is attached to Tab 20 of the book of documents. The digitized minutes are attached to Tab 21 of the book of documents.

23. On June 15, 2021, the investigators sent a memo to Mr. Poudrier in which they responded to the grievor’s comments dated May 6, 2021, on the preliminary investigation report. The investigators attached the final version of the investigation report to the memo. The memo is attached to Tab 22 of the book of documents. The final version of the investigation report is attached to Tab 23 of the book of documents.

24. On June 16, 2021, Guy Poudrier called the grievor to a disciplinary hearing for June 23, 2021. The summons to the disciplinary hearing is attached to Tab 24 of the book of documents.

25. At the June 23, 2021, disciplinary hearing, the grievor was present, along with Lucie Godin, President of the UCCO-SACC-CSN La Macaza local, Denis Bélanger, Acting Assistant Warden, Management Services, and Christine Tremblay, Assistant Warden, Operations. The grievor read a document entitled “Deposition”. The document entitled “Deposition” is attached to Tab 25 of the book of documents.

26. On August 2, 2021, Guy Poudrier called the grievor to a disciplinary hearing scheduled for August 5, 2021. The notice of that meeting is attached to Tab 26 of the book of documents.

27. On August 5, 2021, at the disciplinary hearing, Guy Poudrier terminated the grievor and gave him the termination letter. The termination letter is attached to Tab 27 of the book of documents.

...

[Emphasis in the original]

 

[43] The joint statement of facts ends with the grievance’s filing, its rejection at the final level of the grievance process, and its referral to adjudication before the Board.

[44] The employer called the following to testify: Martin Lebrecque, a Royal Canadian Mounted Police (RCMP) investigator; Sébastien Breton, also an RCMP investigator; Sylvie Delisle, then a member of the National Weapons Enforcement Support Team (NWEST); Guy Poudrier, Warden of La Macaza Institution; Marie-Ève Charest, Deputy Director of the Federal Training Centre (CSC), who was part of the committee that investigated the grievor’s alleged misconduct.

[45] The grievor testified and called as witnesses Justin Kelsch, a correctional officer and the president of the Stony Mountain Institution local in Manitoba, and Yan Garneau, a correctional officer and the president of the Donnacona Institution local in Quebec.

[46] It is unnecessary to revisit the facts that have already been set out. What follows is a chronological summary of the evidence. Overall, the testimonies were not contradictory. When discrepancies occur, I will highlight and resolve them (if necessary, since they do not always affect the final conclusions) based on what I find most likely.

[47] Before the summary of the events that led to the termination, here are a few words about the grievor.

[48] He joined the CSC in 2007 as a CX-01 correctional officer. In 2019, when the events at issue took place, he was a CX-02.

[49] During his CSC career, the grievor carried out different tasks in addition to his correctional officer duties. For several years, he was a firearms-handling and defence-methods and security instructor. He was a member of the Mental Health Committee and the Workplace Health and Safety Committee. From 2009 until his termination, he was a member of the negotiating officer team; its purpose is to de-escalate tense situations that could have serious consequences for inmates and employees, such as hostage takings. The grievor was recruited in 2009 with two other correctional officers to build that team. The negotiating-officer qualification must be renewed annually through certification from the CSC Staff College.

[50] CX-02 correctional officers, in addition to the normal supervision duties, are also responsible for guiding six to eight inmates as they progress in their rehabilitation. The grievor spoke fondly about that aspect of his work. He sincerely believes that inmates can be helped to change their paths, to foster their societal reintegration. In some cases, he has kept in contact with inmates after they left La Macaza, to find out what happened to them.

[51] Finally, the grievor is a big fan of guns and shooting. He does not hunt, but he practises regularly at a shooting club.

[52] I was struck by the grievor’s positive nature. The community service hours ordered as part of his conditional discharge were done at a community organization that provides support (coffee, meals, and clothing) to people in need. He spoke about it enthusiastically and emphasized that he was happy to learn that such a resource exists.

[53] After his termination, he found another job in the security field. He was in charge of security at an estate owned by billionaires. From that I note that he is trustworthy and that he can get up after he has been knocked down.

[54] I must point out one problem. Sometime in 2017, his relationship with a co-worker soured. She made a harassment complaint. After an investigation was held, he was suspended for seven days. He contested the suspension through a grievance, which still has not been resolved. The complainant also made a complaint with the police, but no follow up was done. The grievor’s firearms were seized when the complaint was made and were immediately returned to him.

[55] I mention the harassment complaint only because it is part of the story, particularly because it seemed to weigh on Mr. Poudrier’s mind. I refused to hear more evidence about the complaint because I am not seized with the grievance contesting the suspension.

[56] The story of this grievance begins with the purchase of fuel filters on the Internet. They are central to the events, so they should be explained fully.

[57] The grievor testified that he often bought products on a website called Wish. In September 2019, he was browsing the site, looking for some kind of product that would help him save fuel. According to his testimony, the Wish site shows related articles during a search, which is how he came across an article called “fuel trap solvent filter”, a fuel filter or solvent trap, which appeared to him related to his search to save fuel, even though the article in question did not so specify.

[58] He did not know what it was but stated that his son, who is a mechanic, might have been interested. He ordered two fuel filters, for his car and his son’s. They were worth $2 each.

[59] According to his testimony, he did not know that the RCMP considered the fuel filter a prohibited device. To turn it into a handgun suppressor, it needs only a hole drilled in it. The grievor has handguns (which are restricted, and he has the necessary permits), one of which has a threaded end. Thus, one could (in theory; I did not receive any such direct evidence) attach a suppressor to it.

[60] On the RCMP’s website, the section “Canadian Firearms Program” has the following passage, under the heading “Solvent traps”:

...

... the RCMP has determined that several devices being imported as “solvent traps” or “fuel filters” are in fact firearm suppressors/silencers based on the following key characteristics:

· A metal tube that is threaded on the inside of each end with the mechanical strength to withstand the forces of discharge and passage of a bullet

· Threaded caps to be attached to the metal tube (with or without a pre-drilled bore) with the means of mounting firmly to a firearm

· Baffles or an internal component such as a spring or rubber ring capable [sic] muffling or silencing the sound of discharge

Section 84(1) of the Criminal Code prescribes any device or contrivance designed or intended to muffle or stop the sound or report of a firearm to be a prohibited device....

...

 

[61] The description (tube, caps, and baffles) is consistent with the object that the grievor ordered, except that a suppressor must be drilled for a bullet to pass through it, and the object he ordered was not drilled. Regardless, the fuel filter is considered a suppressor and therefore a prohibited device. Importing and possessing a prohibited device constitute offences under the Criminal Code (R.S.C., 1985, c. C-46).

[62] The Canada Border Services Agency (CBSA), which controls the entry of goods into Canada, informed the CSC that a package containing a fuel filter was to be delivered to one of its employees. Mr. Poudrier, the warden of the La Macaza Institution, where the grievor worked, was informed.

[63] Mr. Poudrier was a member of the RCMP for 28 years. In 2015, he joined the CSC; since 2017, he has been the warden of the La Macaza Institution. He suggested to his supervisor a controlled delivery of the package; that is, the police would make the delivery rather than Canada Post, and once the package was received and accepted, an arrest would be made and a search of the premises carried out. Mr. Labrecque testified that he was in charge of that operation and that he obtained the necessary judicial authorizations.

[64] Mr. Labrecque testified that the CBSA had first decided to conduct an administrative seizure of the object (the CBSA would seize the object and inform the recipient, with no other consequences), but the RCMP decided instead to carry out a controlled delivery because Mr. Poudrier saw a connection with the harassment complaint and reported the police complaint to the RCMP. Therefore, importing the suppressor was suspicious.

[65] When asked about his knowledge of fuel filters, Mr. Labrecque stated that he relied on Ms. Delisle from the NWEST program, who knows firearms well. He could not say whether the seized object could be used as a suppressor.

[66] The package was delivered. The grievor was arrested and interrogated at the police station for several hours. During his interrogation, on the advice of the counsel with whom he spoke, he repeatedly invoked his right to remain silent. In the end, he was released without conditions. He immediately informed his supervisor that he had been arrested.

[67] The RCMP seized several pieces of evidence from the grievor’s home. Charges were recommended to the Crown Attorney, who ultimately laid 14.

[68] Based on the evidence and the search report, the grievor’s weapons had been stored properly, with single or double locks, in accordance with regulations. However, it appeared that one ammunition box was not locked.

[69] The grievor testified that he believed that the box had been locked but that the police unlocked it on the premises. The report was unclear. Nothing was reported at first, and then, as the pieces of evidence were being numbered, it was said that the box was unlocked.

[70] Frankly, I find both testimonies convincing. The grievor, who is careful to lock his weapons properly, is certain that he locked his ammunition box. Ms. Delisle testified that it was unlocked. The photographs taken during the search show that it was unlocked.

[71] The grievor testified that his (adult) son also had access to the keys to unlock the lockers and boxes. It is not impossible that the ammunition box was unlocked without the grievor’s knowledge.

[72] Regardless of whether the ammunition box was locked or unlocked, the fact remains that it resulted in many charges (a charge for each weapon with ammunition in the box that the police said was unlocked).

[73] The fuel filter was seized during the search. Ms. Delisle testified that that object can be used only as a suppressor. In addition, small metal cups (sold as “storage containers”) that resemble parts in the fuel filter were found. To turn them into suppressor deflectors or baffles, they simply need holes drilled into them. The small containers lacked a corresponding cylinder. The grievor testified that he had purchased them for his sons, who are both mechanically gifted, to store screws, nuts, etc.

[74] I note that the grievor ordered two solvent traps in September 2019. The first arrived in October 2019 and triggered the entire series of events that led to his termination. The second one crossed the border (both came from China) around June 2020 and was subject to an administrative seizure, of which the grievor was informed, with no other consequences.

[75] Among the grievor’s weapons were these two suspicious objects: a shotgun with a shortened barrel (sawed off) and a black suppressor, which included parts similar to those of the fuel filter, but they were drilled. And a drill was found in the garage.

[76] Ms. Delisle confirmed on the spot that the sawed-off shotgun was a 12 gauge and that the ammunition found could be used with that weapon. Recall that sawed-off firearms are prohibited in Canada.

[77] An expert opinion was then obtained about the grievor’s weapons. Curiously, no expert opinion was sought to determine whether the fuel filter that was ordered and that was the source of this entire tale could be secured on a handgun and whether it had sufficient mechanical strength to serve as a suppressor.

[78] According to the expert opinion, the sawed-off shotgun, although it was missing several pieces, could still shoot. Contrary to what Ms. Delisle said, it was a 20-gauge weapon. There was no 20-gauge ammunition at the grievor’s home.

[79] The grievor testified that he acquired the sawed-off shotgun at a flea market in 1997 when he was 17 years old. The seller told him that the weapon did not function. For the grievor, it was a curiosity, something like a pirate’s gun. He had it on display for a time but then thought that he would try to remove the layers of paint, to reveal the original barrel. His wife ended up giving him a replica of an antique rifle, and he abandoned his plan to clean the sawed-off shotgun. He was convinced that the weapon did not function, and he never tried to shoot it.

[80] The expert report contains the following about the sawed-off shotgun:

[Translation]

...

This firearm is in shooting condition. Experimental shots were made with it, and it was found functional. Several pieces are missing: the bolt assembly, lock for the bolt handle, screws to secure the buttstock, and the trigger group for the frame.

...

This sawed-off firearm meets the definition of prohibited firearm as defined in section 84(1) of the Criminal Code of
Canada ....

...

[Emphasis in the original]

 

[81] As for the suppressor found in one of his boxes, the grievor had no idea what it was. He was first questioned by the police and then by the investigators, and he repeated that he did not know where that part came from or why it was in his possession. He did not recall using a suppressor in any of his shooting sessions.

[82] Only months later, when his son bought parts for an airgun, did he realize that it was a part for that type of gun.

[83] As stated in the agreed statement of facts, Mr. Poudrier appointed an investigation committee, which summarized the facts that it was to investigate as follows:

[Translation]

On October 30, 2019, Ian Guillemette, an employee working as a correctional officer II (CO-II) at the La Macaza Institution was reportedly arrested for attempting to import illegal goods into Canada (suppressor device for a firearm).

On October 30, 2019, Royal Canadian Mounted Police (RCMP) officers went through Ian Guillemette’s residence, carrying out a search.

...

 

[84] The committee met with the grievor in December 2019. It had already interviewed two police officers, Ms. Delisle and Patrick Thériault, from the Service de police de la Ville de Montréal, who stated categorically that the fuel filters could be used only for one purpose, which is being turned into suppressors by simply drilling a hole into them. The diameter of the filter meant that it could not be installed on a car. The officers also confirmed that the storage containers were in fact baffles for a suppressor.

[85] The grievor explained to the committee the same thing he said at the hearing, which was that he purchased the fuel filters believing that they were automobile parts that could help him save fuel. He had no idea how they were to be installed; he relied on his sons, who were more mechanically inclined.

[86] The grievor had no answer to explain the presence of the black suppressor other than to state that he did not recall purchasing it. He explained that he purchased the sawed-off shotgun at a flea market.

[87] In its report, the committee found that the grievor ordered the fuel filter to turn it into a suppressor, which was confirmed by the presence of a suppressor on the premises that had already been machined. In addition, the Crown Attorney decided to lay related charges (importing, possessing, and manufacturing a suppressor). The committee indicated that it was not convinced by the grievor’s explanations, as follows:

[Translation]

...

Mr. Guillemette’s testimony did not convince the committee that he purchased parts to use on vehicles. On a balance of probabilities, ordering parts without knowing what they are used for is not credible. It is true that the advertisements on Wish can be confusing. However, knowing that a ready-to-use suppressor was also seized from his home, it is more likely that he ordered the parts to make suppressors. The seizure of baffles, some of which had been installed, also lends credence that way.

Based on the information that was gathered, the committee concluded that Mr. Guillemette imported 2 suppressors, had them in his possession, and then manufactured a prohibited device: the black suppressor.

...

 

[88] In its assessment of the charges that had been laid, the committee did not distinguish between weapons and ammunition. All the weapons were correctly locked (except the sawed-off shotgun). The charges related only to the ammunition in the box that was reported as unlocked. However, the committee used the wording of the charge as if it referred to the weapon and listed all the possible offences. For the improper storage of ammunition for the Smith and Wesson pistol, for example, it stated this:

[Translation]

...

... According to the charges that were laid, Mr. Guillemette violated the Firearms Act governing the storage, handling, transport, shipping, display, advertising, and mail-order sale of restricted firearms with respect to that weapon.

...

 

[89] The committee noted three charges related to the sawed-off shotgun, including the one mentioned earlier, possession without a licence, and possession of “[translation] ... readily accessible ammunition that could be used with it”. According to the committee, regardless of the grievor’s intention, he should have taken the necessary steps to ensure that the weapon was legal. The committee reiterated that he had the necessary ammunition for that weapon. On cross-examination, Ms. Charest admitted that she did not know the calibre of the sawed-off shotgun and that she relied on what the police officers said to affirm that the grievor had ammunition for the weapon.

[90] The committee rejected the grievor’s argument that his weapons were properly locked up, since “[translation] ... the investigators and the [Crown Attorney] found negligence with respect to the weapons in question”.

[91] The committee concluded that the grievor violated the Code of Discipline, specifically section 7.d., which states the following:

7. An employee has committed an infraction, if they:

...

d. commit an indictable offence or an offence punishable on summary conviction under any statute of Canada or of any province or territory, which may bring discredit to the Service or affect their continued performance with the Service ....

 

[92] The committee appeared to think that the grievor also breached the Standards of Professional Conduct, the relevant paragraph of which reads as follows:

...

Employees who commit criminal acts or other violations of the law, particularly if the offences are repeated or serious enough to result in imprisonment, do not demonstrate the type of personal and ethical behaviour considered necessary in the Service. Accordingly, any employee who is charged with an offence against the Criminal Code or against other federal, provincial or territorial statutes must advise his or her supervisor before resumption of duties.

...

 

[93] On March 30, 2021, Mr. Poudrier asked the investigators to submit the draft report. In his email, he wrote the following, among other things:

[Translation]

...

... You may include in the report any relevant information from the RCMP’s investigation, the forensic laboratory’s report, if available, of course, and the criminal charges held against Mr. Guillemette and the appearance dates. This should be sufficient for LR to start reviewing the case law and provide its recommendations....

...

 

[94] I note that Mr. Poudrier did not seem to want to wait for the outcome of the court proceedings. I also note that he spoke of “criminal charges held” even though at that stage, the charges had only been laid. None have yet been held.

[95] Mr. Poudrier testified that he found nothing credible in the grievor’s explanations. According to him, the grievor imported a suppressor, manufactured the other one found at his home, and knowingly or negligently purchased a sawed-off shotgun. In addition, he pleaded guilty. Due to that plea, the bond of trust was irreparably broken. Termination was the only logical consequence.

[96] When he was first informed of the fuel-filter purchase, Mr. Poudrier immediately made a connection with the harassment complaint, which stayed on his mind. Even at the hearing, he said that he could not discount that suspicion.

[97] According to Mr. Poudrier, the grievor did not cooperate well with the investigation, lacked transparency, and had little credibility.

[98] The investigation committee sent a first version of its report to Mr. Poudrier on April 27, 2021. He sent it to the grievor on April 29. On May 6, 2021, the grievor provided his comments, which were sent to the committee. It did not change its conclusions.

[99] In his comments, the grievor first pointed out the failure to take into account his integrity and honesty as established in his workplace. In addition, he is very familiar with gun regulations as he is a longtime shooting instructor and hobbyist. It made no sense for him to acquire a prohibited device, meaning the suppressor.

[100] The item ordered (worth $2) could not be used as a suppressor because it was not drilled. The drilling must be done very precisely. No expert opinion was sought to determine whether it would be suitable for the grievor’s guns. Despite examining all his electronic devices (tablet and telephone), the police officers found no searches on suppressors.

[101] The grievor also explained that the black one found at his home was in fact a fake suppressor for airguns and that it is legal.

[102] The report was not substantially modified after those comments. The committee made some editorial changes, but the conclusions remained the same.

[103] The final report was submitted on June 16, 2021. Mr. Poudrier said that he based his termination decision on it.

[104] Mr. Poudrier and Ms. Charest both testified that they did not read the minutes of the final appearance before the Court of Quebec, which a representative of the La Macaza Institution attended. That appearance was on June 11, 2021.

[105] At that appearance, the grievor pleaded guilty to two offences: possession of a prohibited weapon (sawed-off shotgun), and possession of a prohibited device (black suppressor). At the Board’s hearing, he explained the origins of those two objects as he had attempted to do with the investigation committee.

[106] The grievor also explained why he pleaded guilty. He could not afford a criminal trial that would have cost him thousands of dollars. His counsel reached an agreement; if he pleaded guilty to both counts, the Crown Attorney would drop the other counts and recommend a conditional discharge. He was acquitted of all the other counts. The grievor made inquiries not only with his criminal lawyer but also with a lawyer from his union. The union’s lawyer reassured him that he was not at risk of termination for a guilty plea, especially if he received a discharge.

[107] Some parts of the minutes from the final appearance are worth mentioning.

[108] The Crown Attorney stated as follows with respect to the other charges:

[Translation]

...

We realized during the investigation that with respect to the imported suppressor, the first one, both ballistics and the Border Services Agency were unable to determine whether it did in fact meet the definition of a prohibited weapon or rather that of a prohibited device, and for the careless storage, we were unable to determine, after the investigation and then the analysis of the photos, etc., whether it was in fact a case of careless storage.

Basically, Mr. Guillemette has valid permits and had them at the time for those weapons. So, the withdrawals ... not the withdrawals but rather what the public prosecutor cannot prove for the other counts.

...

 

[109] The Judge stated this after hearing that the grievor worked for the CSC as a correctional officer:

[Translation]

...

Very well. So, given the particular circumstances that were explained by the public prosecutor’s office, among other things, the explanations given by the defence as well, of course, given Mr. Guillemette’s job and given ... the information I have received that he has no connections with any kind of criminal organization, because when we see this kind of case, normally, actually, a suppressor may give the impression that there is something underneath it, so the Court is satisfied with the explanations as provided, and given his job, it is in his true interest to not have a criminal record, so a conditional discharge for a period of eighteen (18) months.

...

 

[110] Under the terms of the discharge, the grievor had to make a donation to a charity and had to perform 100 hours of community service within the 18-month period. No other conditions were imposed.

[111] At the hearing, Mr. Kelsch and Mr. Garneau testified that in some circumstances, correctional officers have been found guilty of criminal offences but nevertheless kept their jobs.

[112] The H.H. case, to which Mr. Kelsch referred, is particularly striking for its similarity to the grievor’s situation. H.H. pleaded guilty to possessing a suppressor and high-capacity magazines as well as to the careless storage of his firearms. Much harsher conditions were imposed, including a curfew and a 10-year ban on possessing firearms. However, H.H. did not lose his correctional officer job; an exception to the conditions was made for carrying and using firearms in the course of his job. He was suspended without pay for 10 days as discipline.

[113] Mr. Garneau referred to a correctional officer who was found guilty of assault causing bodily harm. He did not lose his job. Apparently, the bond of trust was not broken.

[114] The termination letter was based on the investigation’s findings. The paragraphs justifying the termination read as follows:

[Translation]

...

The disciplinary investigation mandated on November 13, 2019, after your arrest and a search of your home on October 30, 2019, revealed that you imported 2 suppressors, had them in your possession, and then manufactured a prohibited device, the black suppressor; that you violated the Firearms Act, which governs the storage, handling, transport, shipping, display, advertisement, and mail-order sale of firearms; that you illegally possessed a prohibited firearm: a sawed-off shotgun. And 14 criminal charges were laid against you on July 22, 2020, and you pleaded guilty to 2 of them on June 11, 2021, for the possession of a prohibited firearm (sawed-off shotgun) and of a prohibited device intended to dampen or suppress the sound of a gunshot, namely, a handcrafted (modified or drilled) black suppressor. As a result, you are guilty of offences set out in ss. 86(2), 86(3)(a)(i), 91(2), and 91(3) of the Criminal Code.

By your actions, you violated the Code of Discipline (CD 060), the Correctional Service of Canada’s Standards of Professional Conduct, and the Values and Ethics Code for the Public Sector. The behaviours just mentioned are inadmissible and directly contradict the very nature of the Correctional Service of Canada’s operations, mission, and values, as set out in Commissioner’s Directive 001, your correctional officer duties, and your peace officer status with the Government of Canada.

Before making this decision, I considered the mitigating and aggravating factors in your file. As mitigating factors, I noted your previous performance record and the length of the process. As aggravating factors, I took into account the seriousness of your misconduct, the nature of your misconduct, your years of service, your lack of remorse and accountability, your limited cooperation, your low credibility, your peace officer status, and your disciplinary record. Taking all those things into account, I find that the bond of trust that linked you to the Correctional Service of Canada has been irreparably broken.

...

 

[115] When asked about the termination letter, Mr. Poudrier stood by its content. He presumed that the grievor manufactured the suppressor; there is no other explanation. In Mr. Poudrier’s view, the breaches of the Firearms Act (S.C. 1995, c. 39) with respect to storage, even though the grievor was acquitted of all those charges, still happened because charges were laid.

[116] The grievor testified that the Warden gave no explanation to justify his decision other than that it was final and that the bond of trust was broken. The recording of that part of the conversation, after the letter was delivered and when the grievor asked for explanations, was played at the hearing. It was consistent with his testimony, including the Warden’s abrupt departure; apparently, he was tired of the discussion.

IV. Summary of the arguments

[117] Both parties presented case law to me to support their arguments. I retained what I thought was relevant to the decision, and I will return to it in my analysis.

A. For the employer

[118] The employer argues that the charges laid and the guilty plea are sufficient to confirm that the grievor’s conduct was inconsistent with the CSC’s values and that the bond of trust was broken.

[119] A correctional officer works to rehabilitate inmates. The grievor is not a role model since he denied responsibility and claimed that he has nothing to blame himself for.

[120] The employer questions the grievor’s credibility, pointing to his explanations about the black suppressor as an example. First, he pleaded guilty to the possession of the suppressor. Then, he tried to say that it was a fake suppressor to be used with his son’s airgun. He did not ask his son to testify on that point. Finally, Ms. Delisle was clear that the black suppressor was similar to the object ordered. She was not cross-examined on whether it was a fake suppressor.

[121] Based on the analysis developed in Wm. Scott & Co. (Re), [1977] 1 Can. LRBR 1, three questions must be asked to decide a grievance that challenges a disciplinary measure: 1) Was there misconduct? 2) Was the disciplinary measure excessive? 3) If so, what other measure should be substituted for it?

[122] According to the employer, misconduct occurred because the grievor pleaded guilty to two offences. The disciplinary action was not excessive because the bond of trust was broken.

[123] Receiving a discharge means there is no conviction; it does not mean that there is no guilt. The grievor pleaded guilty, and the Court accepted his guilty plea. The adjudicator cannot question a criminal court’s declaration of guilt (see Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63; “C.U.P.E.”).

[124] In Millhaven Fibres Ltd. v. Oil, Chemical & Atomic Workers Int’l Union, Local 9-670, [1967] O.L.A.A. No. 4 (QL), the arbitration board set out these five criteria to assess when misconduct occurs outside the workplace:

...

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 thus 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 functions of efficiently managing its Works and efficiently directing its working forces.

...

 

[125] The general principle, according to the arbitration board, is to determine the extent to which the misconduct affected the employer’s operations.

[126] The employer bases its position on criteria 1, 2, and 4. The impugned acts were contrary to its values and discredited it. A connection with employment exists because committing a criminal act and a peace officer’s role are contradictory.

[127] Essentially, the employer used the reasoning in the termination letter to justify the termination.

B. For the grievor

[128] The grievor acknowledges that he pleaded guilty to two criminal offences and therefore acknowledges his misconduct. He agrees that disciplinary action was necessary but feels that the termination was excessive.

[129] The termination letter was based on the investigation report’s findings, not all of which had merit, for example, offences under the Firearms Act. The grievor claimed that the ammunition box was locked. Most importantly, the committee completely overlooked the fact that as confirmed by the police investigation, all the firearms were stored in accordance with regulations.

[130] With respect to the suppressors he allegedly imported, one might wonder whether a part that has to be modified is in fact a prohibited object. Furthermore, there is no evidence that the grievor manufactured the black suppressor. Finally, no expert opinion was sought to determine whether the black suppressor could be used on the grievor’s weapons.

[131] The penalty was excessive. Mr. Poudrier said that the grievor’s actions were incompatible with his duties. However, he acquired the sawed-off shotgun long before the CSC hired him. It is hard to understand why that became an obstacle.

[132] Mr. Poudrier spoke about the broken bond of trust. However, even though all the facts were already known, the grievor returned to work (in other duties). He was trusted in a job that gave him financial responsibilities and access to inmate files.

[133] His possession of the sawed-off shotgun was based on a sincere but erroneous belief. It is not an excuse but an explanation. The possession is undeniable, but it is also true that the grievor never used that weapon, which he genuinely believed was inoperable, as the seller had told him.

[134] Similarly, he acknowledged that he possessed a suppressor but had no recollection of it. He saw it in a photograph only after it was seized. He did not shirk responsibility for the possession but tried to explain the circumstances. In his view, the theory that it is a fake suppressor for an airgun is the most likely. Note that despite extensive searches of the grievor’s electronic devices, the police officers found no evidence of any searches being done for suppressors or their fabrication.

[135] The grievor cooperated with the employer’s investigation; he answered all the committee’s questions. The fact that he quickly found a job in the security field, where he was frequently in contact with the police because of his duties, shows that he is trustworthy.

[136] The uncontradicted evidence of Mr. Kelsch and Mr. Garneau demonstrates that the penalty was disproportionate. H.H. pleaded guilty to possessing suppressors and high-capacity magazines, which are prohibited. Yet, he was suspended for only 10 days, despite discharge conditions far more severe than the grievor’s.

[137] The grievor’s arguments conclude with the requested remedies.

[138] The grievor believes that he should receive a 20-day suspension and then be reinstated with retroactive pay as well as any bonuses, leave, and overtime to which he would have been entitled. He accepts that the income from the employment he has held since his termination should be deducted from that amount.

[139] He asks that his pension plan be reinstated, as well as the Canada Pension Plan and the Quebec Pension Plan benefits, and that the employer reimburse the costs that the employer’s medical insurance would have covered during that period. He asks that interest be added at the legal rate in the province of Quebec. He waives the moral and punitive damages that he requested in his grievance. The most important thing for him is to become a correctional officer again.

V. Analysis

[140] The parties agree on the two key decisions on similar matters: Wm. Scott and Millhaven Fibres Ltd.

[141] In Wm. Scott, the arbitrator set out the process to follow when an arbitrator is seized with a grievance challenging a disciplinary action. Three questions arise: 1) Was there misconduct? 2) Was the penalty imposed proportionate to the seriousness of the misconduct? 3) If not, what penalty should be substituted?

[142] In Millhaven Fibres Ltd., the question was the extent to which misconduct outside the workplace should have disciplinary consequences at work.

[143] Was there misconduct? Apparently, the investigation’s committee’s report established the misconduct, and the termination letter confirmed it. In the following paragraphs, I will consider the grievor’s alleged misconduct, and state my conclusions.

A. The importation of two suppressors

[144] According to the Crown Attorney, no conclusion was reached about the fuel filters, namely, whether they could actually be used as suppressors. No expert opinion was sought on either the object seized from the grievor’s home or the black suppressor. Therefore, it is unclear whether the seized object could in fact be turned into a suppressor or whether the black suppressor could be used on the grievor’s weapons. The second ordered item was subject to administrative seizure, with no further action.

[145] Furthermore, the grievor’s explanation about importing fuel filters seems more plausible to me than making a suppressor from a piece of sheet metal or plastic worth $2.

B. The possession and manufacture of the black suppressor

[146] The grievor pleaded guilty to possession of the black suppressor, which the Court accepted. I will not return to this; I cannot contradict a court decision (see C.U.P.E.). However, I note that under s. 730 of the Criminal Code, the grievor is deemed to have not been convicted.

[147] As for manufacturing the suppressor, absolutely no evidence supports that assertion. The mere presence of a drill in his garage proved nothing. I note that no expert opinion was sought to establish a link between the drill and the black suppressor, and I note that the police investigation did not find any searches by the grievor about making suppressors.

C. Violations of the Firearms Act governing the storage, handling, transport, shipping, display, advertisement, and mail-order sale of firearms

[148] Recall that the only breach that the police investigation established was the failure to lock up the ammunition. Recall also that the police officers at the scene noted that all the arms were properly stored with single or double locks, in accordance with the regulations. Finally, note that the Crown Attorney spoke of the lack of evidence.

D. Possession of a prohibited firearm: a sawed-off shotgun

[149] The grievor pleaded guilty to this offence, so the same reasoning applies to it as for the possession of the black suppressor.

E. Fourteen criminal charges laid

[150] I fail to see the relevance of this fact given the acquittal for 12 of the charges except to support the decision to terminate.

F. Violation of the Code of Discipline, the Correctional Service of Canada’s Standards of Professional Conduct, and the Values and Ethics Code for the Public Sector

[151] The investigation report mentions only the Code of Discipline and the Standards of Professional Conduct. Thus, it is unclear what the mention of the Values and Ethics Code for the Public Sector refers to.

[152] Committing a criminal act is an infraction under the Code of Discipline. Since the grievor pleaded guilty to two criminal offences, this allegation has merit. However, the only passage cited from the Standards of Professional Conduct provides that in the event of an arrest, the employee must inform their supervisor. The grievor did so on the day of his arrest. Therefore, I do not see how these standards would have been breached.

[153] The termination letter identified the grievor’s lack of remorse and accountability, limited cooperation, and low credibility as aggravating factors.

[154] The grievor explained the origins of the two objects for which he ended up pleading that he was guilty of possessing. I do not mean to contradict the Court’s judgment, but I understand the lack of remorse for purchasing, at 17, an antique gun missing several parts and for possessing an object that the grievor did not even know existed. That said, if the purpose of remorse is to ensure that the person does not reoffend, I believe that no repeat offence is assured in this case. I am sure that the purchase of a dubious shotgun at a flea market or of fuel filters on the web will not happen again. Any fake suppressor device will be kept with the airgun, away from the grievor’s weapons.

[155] The grievor cooperated fully with the investigation. He answered all questions. The investigators did not find his answers credible. That is their perception. It is not mine. If the allegation of limited cooperation is related to the interrogation at the police station, I believe it is beyond the bounds of what the employer can require of an employee. In the context of a criminal investigation, the right to remain silent is guaranteed by the Constitution.

[156] It struck me that Mr. Poudrier asked the investigation committee to submit its report before the grievor’s final appearance before the Court that was to try the criminal charges. In other words, he wanted the report to contain the charges and the committee’s conclusions, not a record of the state of the charges. The investigation committee submitted the report on June 16, 2021, five days after the grievor’s appearance, but according to Ms. Charest’s and Mr. Poudrier’s testimonies, it absolutely did not consider what happened in court, except to note the guilty pleas on two counts.

[157] When the termination letter was delivered, Mr. Poudrier strongly emphasized that the bond of trust was broken.

[158] The broken bond of trust is almost always referred to as a final point in a termination letter. It means that given the employee’s actions, the bond of trust is broken. In other words, it is not the employer’s perception — the employee must have committed acts that from an impartial perspective, justify the employer no longer trusting the employee.

[159] One might think of different behaviours, such as lying, stealing, or acting in a manner contrary to the employer’s interests that causes serious harm to the employer’s property, staff, or clientele.

[160] But this case has nothing of the sort. The grievor cooperated with the investigation. He answered the questions based on what he knew. He did not steal anything; nor did he harm any employee or inmate. One looks in vain for a reason that the bond of trust was broken because two objects were found at his home that were never used in the workplace. In fact, according to his testimony, which I believe, he never used those two objects. He had no ammunition for the sawed-off shotgun, which is in rather poor condition, according to the expert opinion, even though it could be fired as an experiment, and he never used suppressors during shooting practice. No expert opinion was sought on the black suppressor to demonstrate its compatibility with the grievor’s weapons.

[161] There is no indication of danger. The grievor was released on the day of his arrest, without conditions. His firearms permits were suspended during the investigation, but it seems clear from the record of the proceedings that he will recover his firearms once the permit process completes.

[162] Mr. Poudrier argued that the grievor could not keep his job after pleading guilty. He also mentioned the grievor’s lack of transparency.

[163] The grievor cooperated with the investigation; he informed his employer on the day of his arrest. He invoked his right to remain silent during the interview with the police service, as his counsel had advised him. However, during the investigation, he answered all the questions and cooperated fully. In addition, the employer was aware of all the court appearances, and an employer representative attended the final one.

[164] Pending the outcome of the investigation process, the employer continued to employ the grievor. In other words, the bond of trust was not broken. It apparently breaks with the investigation report. But the investigation report added nothing new.

[165] The investigation report, as I detailed earlier, is largely about allegations that were not proved. The origin of this entire case, the so-called importation of a suppressor, falls short. I received no evidence from an expert on the object in question to determine whether in fact it could be turned into a suppressor. Nor did I receive any evidence that the black suppressor was compatible with the grievor’s weapons. There was absolutely no evidence that the grievor manufactured that suppressor. He was acquitted of any breach of the Firearms Act. There was no ammunition for the sawed-off shotgun at his home.

[166] The grievor made a calculation by pleading guilty, and he did not retract it at the hearing. He states that he deserves a 20-day suspension for the errors for which he pleaded guilty.

[167] The grievor pleaded guilty to two criminal offences. An administrative tribunal cannot contradict a court’s conclusion (see C.U.P.E.). Therefore, I conclude that misconduct took place.

[168] Given the misconduct conclusion, was the termination penalty proportional? In my view, the misconduct did not merit termination. It had nothing to do with the workplace and did not discredit the CSC (no media reports were made, according to the evidence), and the grievor did nothing to break the bond of trust. The employer did not establish how his behaviour harmed its reputation or prevented him from doing his job.

[169] Determinative for me is that a similar judicial matter, H.H., led to a very different result, especially since the conditions that the Court imposed on H.H. were much more severe. Mr. Kelsch’s and Mr. Garneau’s testimonies were not contradicted. It is possible to continue working at the CSC as a correctional officer even after being found guilty of a criminal offence. Of course, it all depends on the facts, the context, and the seriousness of the offences.

[170] Returning to the Millhaven Fibres Ltd. criteria, which the employer cited, in H.H.’s case, who pleaded guilty to firearms offences, no concern seemed to arise about the CSC’s reputation or about workplace problems. I received no evidence to the contrary about the grievor.

[171] I conclude that the termination should be rescinded. Since I have concluded that misconduct occurred, it is a question of what penalty should replace the termination.

[172] In H.H.’s case, a 10-day suspension was imposed for pleading guilty to similar charges. I did not receive any evidence of H.H.’s disciplinary file.

[173] I know that the grievor’s file includes the 7-day suspension imposed after the investigation into the harassment complaint. As I said, this penalty is the subject of a grievance that the Board has not yet heard, so I have to take the grievor’s file as it is now. I find his 20-day suspension proposal reasonable in the circumstances.

G. Remedies

[174] At the hearing, it was agreed that the decision would be limited to the termination, not the remedies. In the following order, based on the reasoned decision stated earlier, I reinstate the grievor and grant him the benefits resulting from that reinstatement. Any wages earned from another job will be deducted from the salary amount paid to him.

[175] The grievor requested that interest at the legal rate in the province of Quebec be added to the compensation amount as allowed by s. 226(2)(c) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2). The employer requested that interest be paid on the net amount.

[176] It seems to me that the principle of damages is to compensate for what the grievor would have earned had he not been terminated. It seems logical to pay interest on the net amount; that is, the salary minus the usual deductions, which was the solution chosen in Hanna v. Treasury Board (Department of the Environment), 2020 FPSLREB 116.

[177] The mitigation of damages is then added to the calculation. The employer compensates the grievor for what he would have earned. The grievor’s contribution to mitigating the damages prevents unjust enrichment.

[178] In his grievance, the grievor also sought monetary compensation for the harm he suffered as well as punitive damages, which he waived at the hearing. Thus, there is no need to pursue remedies. Since the termination was not justified, the usual remedy is ordered: reinstatement and compensation. Given the grievor’s professional profile, I have no doubt that his reinstatement at the CSC will succeed.

[179] For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

VI. Order

[180] The grievance is allowed.

[181] The grievor is reinstated to a position at the CX-02 level after a 20-day suspension starting on August 5, 2021.

[182] The employer will pay the grievor, within 60 days of this decision, the amount owed for salary, premiums, and overtime (calculated by taking an average of overtime worked by correctional officers at the CX-02 level at the La Macaza Institution during the period in question), less the usual deductions.

[183] The employer will pay the grievor, within 60 days of this decision, the simple annual interest at the legal rate in the province of Quebec on the amount calculated in the last paragraph.

[184] The net amount of salary earned by the grievor from other employment during this period will be deducted from the amount paid according to the last two paragraphs.

[185] The grievor’s leave credits will be restored.

[186] The employer’s pension plan will be reinstated. The employer will contribute its share to the Canada Pension Plan and the Quebec Pension Plan.

[187] Medical, dental, and paramedical expenses incurred during this period will be reimbursed in accordance with the terms of the employer’s medical insurance plan.

[188] I remain seized of any matter related to implementing this order for a period of 60 days.

February 9, 2023.

FPSLREB Translation

Marie-Claire Perrault,

a panel of the Federal Public Sector

Labour Relations and Employment Board