Maillet v. Canada (Attorney General)

Maillet v. Canada (Attorney General)
Collection
Canadian Human Rights Tribunal
Date
2005-12-21
Neutral citation
2005 CHRT 48
File number(s)
T935/5504
Decision-maker(s)
Hadjis, Athanasios
Decision type
Decision
Decision Content
CANADIAN HUMNAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE
DANIEL MAILLET
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
ATTORNEY GENERAL OF CANADA (REPRESENTING THE ROYAL CANADIAN MOUNTED POLICE)
Respondent
DECISION
MEMBER: Athanasios D. Hadjis
2005 CHRT 48 2005/12/21
I. THE COMPLAINT
II. WHAT MUST THE COMPLAINANT PROVE TO SUBSTANTIATE HIS COMPLAINT?
III. THE COMPLAINANT HAS ESTABLISHED A PRIMA FACIE CASE WITH RESPECT TO THE SECTIONS 7 AND 10 PORTIONS OF HIS COMPLAINT
IV. THE RCMP'S ANSWER TO THE SECTION 7 COMPLAINT - WHY WAS THE COMPLAINANT NOT HIRED?
A. Inconsistencies and discrepancies regarding the Complainant's use of drugs
B. Inconsistencies and discrepancies regarding the Complainant's departure from the Dieppe Police Department
C. The Complainant's failure to disclose his brother's criminal record
V. ARE THE RCMP'S EXPLANATIONS REGARDING THE SECTION 7 COMPLAINT REASONABLE, OR ARE THEY MERELY A PRETEXT FOR DISCRIMINATION?
A. Did the RCMP inquire into the Complainant's sexual orientation?
B. Can the evidence of Mr. Desaulniers and Mr. McGraw be reconciled?
C. What is the Complainant's theory for why his application was turned down?
VI. THE RCMP'S ANSWER TO THE SECTION 10 COMPLAINT: THE ALLEGED POLICY
OR PRACTICE DOES NOT EXIST
VII. CONCLUSION - COMPLAINT DISMISSED
I. THE COMPLAINT [1] In 2001, the Complainant applied to become a member of the Royal Canadian Mounted Police (RCMP) but, according to his human rights complaint, he was refused on discriminatory grounds, namely his perceived sexual orientation and his family status (his relationship with his brother). He alleged that this refusal was a breach of s. 7 of the Canadian Human Rights Act. The Complainant also alleged that the RCMP conducted an inquiry in connection with his prospective employment that implied the existence of a limitation, specification or preference based on his perceived sexual orientation, in violation of s. 8 of the Act. In addition, the Complainant alleged that the RCMP pursued a policy or practice of determining his sexual orientation that deprived or tended to deprive him of an employment opportunity, in breach of s. 10 of the Act.
[2] The Complainant and the Respondent were represented by counsel at the hearing. The Canadian Human Rights Commission opted not to appear at the hearing.
II. WHAT MUST THE COMPLAINANT PROVE TO SUBSTANTIATE HIS COMPLAINT? [3] A complainant has the initial burden of establishing a prima facie case of discrimination. The Supreme Court of Canada decision in Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 at para. 28 (O'Malley) provides the basic guidance for what is required to make out a prima facie case. The Court states that a prima facie case is one that covers the allegations made and which, if the allegations are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent.
[4] Once the prima facie case is established, the onus then shifts to the respondent to provide a reasonable explanation demonstrating that the alleged discrimination did not occur as alleged or that the conduct was somehow non-discriminatory. If a reasonable explanation is given, it is up to the complainant to demonstrate that the explanation is merely a pretext for discrimination (Basi v. Canadian National Railway Company (No.1) (1988), 9 C.H.R.R. D/5029 at para. 38474 (C.H.R.T.)).
[5] In order for the complaint to be substantiated, it is sufficient that discrimination be just one of the factors in the employer's decision (Holden v. Canadian National Railway Company (1991), 14 C.H.R.R. D/12 at para. 7 (F.C.A.)). The standard of proof in discrimination cases is the civil standard of the balance of probabilities.
[6] Discrimination is not a practice that one should expect to see displayed overtly. A tribunal should therefore consider all circumstances in determining if there exists what has been described as the subtle scent of discrimination. In cases involving circumstantial evidence, an inference of discrimination may be drawn where the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypotheses (Basi, supra at paras. 38486-7; see also Chopra v. Dept. of National Health and Welfare (2001), 40 C.H.R.R. D/396 (C.H.R.T.)).
[7] In accordance with the principles set out above, and after having carefully considered all of the evidence and representations in this case, I have determined that the Complainant has established a prima facie case with respect to the s. 7 and s. 10 portions of his complaint. However, the RCMP has provided an explanation that is reasonable and not pretextual. I am therefore dismissing those portions of the complaint.
[8] The Complainant did not advance any argument with respect to the s. 8 component of the complaint during the opening statement or during final submissions. The Complainant did not direct the Tribunal to any evidence that would support or relate to the s. 8 allegation. I can only assume that the Complainant has opted not to pursue this aspect of the complaint. In any event, it would be a breach of fairness and natural justice for the Tribunal itself to try to formulate arguments in support of this aspect of the complaint and then attempt to make findings thereon. The case for the s. 8 complaint must therefore be dismissed.
III. THE COMPLAINANT HAS ESTABLISHED A PRIMA FACIE CASE WITH RESPECT TO THE SECTIONS 7 AND 10 PORTIONS OF HIS COMPLAINT [9] The Complainant is a native of New Brunswick. In November 1989, he graduated from the police science programme of the Atlantic Police Academy at Holland College in Charlottetown, P.E.I. In 1990, he began his police career by working as a part-time officer for the municipal forces of Shediac and Tracadie-Sheila, in New Brunswick. In June of the same year, he was hired by the police force of the city of Dieppe, New Brunswick, where he worked until 1993. He eventually re-joined the Tracadie-Sheila municipal police service, and in 1997, he moved on to the police department of the nearby city of Caraquet, on the Acadian Peninsula.
[10] In the 1990's, in furtherance of the provincial government's policy for the development and implementation of uniform policing standards across New Brunswick, numerous municipal police forces were absorbed into the RCMP by special agreement. In December 2000, the Municipality of Caraquet approved the absorption of its police force into the RCMP, to take effect on November 1, 2001.
[11] According to the absorption plan, the RCMP undertook to hire, insofar as possible the full time police officers of the Caraquet police department who possessed the necessary professional qualifications. In order to be hired by the RCMP, the Caraquet officers had to be interviewed and undergo medical and psychometric examinations. In addition, they had to clear a security and reliability check. In contrast to new recruits, they did not have to attend the RCMP's training facility in Regina, and were not required to pass fitness tests or write written exams.
[12] The Complainant was confident that the RCMP would hire him. The absorption had been expected for several years, so he and most of his fellow officers at Caraquet had already undergone and passed their medical examinations by the year 2000. Although he had been asked at one point to redo his psychometric test, he was not informed of any difficulties with the ultimate results. Everything was proceeding as expected by the time he filed his formal application to become a member on March 2, 2001.
[13] Numerous colleagues and supervisors from the police departments of Caraquet and the other municipalities where he had worked testified that he was a very competent police officer. He was honest, reliable, polite, good-humoured and well-liked. To this day, they would recommend him without reservation for employment with any policing organization, including the RCMP. Indeed, many of these witnesses had joined the RCMP after the absorption of their respective municipal forces and they asserted that the Complainant could perform the functions of an RCMP member without any difficulty. The RCMP's eventual refusal to hire him was as much of a surprise to them as it was to the Complainant himself.
[14] On March 14, 2001, the Complainant was interviewed in Caraquet by RCMP member, Cst. Jean-Paul St-Laurent. At the time, Cst. St-Laurent was working within the RCMP's human resources office in Fredericton, as a Recruiting and Security Coordinator. He was charged with the duty of coordinating the security and reliability screening for all RCMP applicants, whether they were new recruits, or existing police officers who were working in police departments that were being absorbed.
[15] Cst. St-Laurent's questions during the interview were varied, ranging from the Complainant's finances and hobbies to his friends and family, and the extent of his alcohol use if any. The meeting ended without the Complainant sensing any concern about his application. Cst. St-Laurent told him that in the next stage of the process, his interview answers would be verified, as part of his security and reliability screening.
[16] Several weeks later, the RCMP assigned Joseph Yves Desaulniers to conduct some of the field investigation into the security and reliability of the Caraquet officers who had applied to join the RCMP. Mr. Desaulniers was a retired RCMP member whose services were regularly retained on contract to conduct these types of enquiries. At the request of the RCMP, the Complainant had provided the names of several acquaintances and colleagues as references. Mr. Desaulniers met with many of these individuals, including Rodrigue McGraw.
[17] Mr. McGraw was an experienced officer with the Caraquet police force and had worked with the Complainant for about three years. Mr. McGraw had not passed the medical examination, which he and the other Caraquet officers had taken in advance of the absorption. In the knowledge that the RCMP would therefore not be hiring him, he had sought out and obtained employment with the provincial public service in advance of the absorption. When Mr. Desaulniers contacted him, he was already employed at his new job and was no longer working with the Complainant.
[18] Mr. Desaulniers interviewed Mr. McGraw at the latter's office in Bathurst. They had a quick conversation lasting no more than 20 minutes. Mr. McGraw testified that the initial questioning was open-ended and related to what sort of person the Complainant generally was. Mr. Desaulniers then asked if the Complainant was homosexual. Mr. McGraw was taken aback and visibly upset with this question. Mr. Desaulniers explained that the matter had come up earlier in his investigation. He was not necessarily saying that the Complainant was homosexual; he was just asking. Mr. McGraw told the investigator that he would be surprised if the Complainant was homosexual.
[19] Mr. McGraw claims that he was so upset with the questioning, he spoke about it to a colleague at his new workplace immediately after the meeting. He claims to have also raised the incident with Aubin Albert, who was the Chief of the Caraquet Police department at that time. Mr. Albert did not make mention of such a conversation in his testimony, however. Mr. McGraw only managed to tell the Complainant about the questioning on or about April 17, 2001.
[20] One of the Complainant's other character references who was also interviewed by Mr. Desaulniers was Denis McLaughlin. He and the Complainant had worked together in the Tracadie-Sheila police department. Mr. McLauglin had successfully transferred into the RCMP upon the absorption of the Tracadie-Sheila police department in 1997.
[21] Mr. McLaughlin testified that he was interviewed by Mr. Desaulniers about the Complainant. He told Mr. Desaulniers that in his opinion, the Complainant could perform the duties of an RCMP officer as well as any other member. However, he also testified that during the interview Mr. Desaulniers asked him a question regarding the Complainant's sexual orientation, although he could not recall exactly how the question was framed. Mr. McLaughlin was surprised to hear the question, and testified that his only answer was that he did not know and did not care if the Complainant was homosexual or not.
[22] On May 8, 2001, Cst. St-Laurent called the Complainant to a meeting at the RCMP's offices in Caraquet. Cst. St-Laurent told the Complainant right away that he had bad news - the Complainant's application to the RCMP was being turned down. The Complainant asked why. Cst. St-Laurent explained that his file had been reviewed by high-ranking officers back at the Fredericton headquarters, and it was determined that due to several small items, he did not fit the image of an RCMP officer. The Complainant asked for specific reasons. He was told that his brother, who lived in British Colombia, had a criminal record for sexual assault, which played a role in the decision. The fact that the Complainant had previously applied to the RCMP in the late 1980's and had been refused was also a factor. His declared prior usage of marijuana and hashish also played a role.
[23] During the meeting, the Complainant mentioned having heard that questions had been asked by the RCMP about whether he was a homosexual. According to the Complainant, Cst. St-Laurent replied that this subject was never on the table.
[24] Despite Cst. St-Laurent's denial, and in light of Mr. McGraw's information about the questions posed by Mr. Desaulniers, the Complainant suspected that his perceived sexual orientation may have been a factor in the decision not to hire him. He therefore asked Mr. McGraw to sign a written statement setting out what had transpired during the latter's meeting with Mr. Desaulniers. The Complainant prepared a questionnaire in a typical question and answer format, with spaces provided for Mr. McGraw to write in his answers. Mr. McGraw filled out and signed the document on May 19, 2001.
[25] Mr. McGraw attached a separate sheet to the questionnaire, on which he had recorded his recollection of the conversation in narrative form. I have included the following excerpts from the narrative, as they were written. Mr. McGraw refers therein to Denis Albert and Serge Losier, both of whom were persons whom the Complainant had identified in his application to the RCMP as character references. Mr. Desaulniers had already interviewed both of them prior to meeting up with Mr. McGraw:
[TRANSLATION]
On or about March 28, 2001, I received a phone call from Jean Yves Desaulniers, asking me if it would be possible to meet me in person. . . . The meeting took place between eleven o'clock and noon at my office. He said to me: do you personally know Daniel Maillet of the Caraquet Police well? I replied: I think so, yes.
Q [Mr. Desaulniers]: What kind of guy is he [the Complainant]?
A [Mr. McGraw]: A guy who keeps to himself. He lives in a house built in the woods in Caraquet. He minds his own business, hard working and polite.
Q : What is he like at work?
A : Everybody likes him. We really enjoy teasing him. It is as if he does not feel liked if we do not tease him.
Q : Is it true that he is homosexual?
A : What . . . What are you saying? Now, where is that story coming from?
Q : Denis Albert, what does he have to do with Daniel?
A : He's a friend.
Q : Why are they called Daniel and Denise?
A : That's a joke. Denis is far too macho to be queer.
Q : He has an earring or a pin in his ear, something like that?
A : I haven't noticed. Wow, but that's a serious accusation.
Q : I am not saying that he is one. That's what I learned from my investigation. They are often together. Their Jeeps are almost the same. There is also another guy from Tracadie, over there, who is with them a lot. Is he a homo too, that one?
A : I don't know him. I cannot swear that Daniel Maillet is not homo but I would be more surprised than anyone.
Q : Why would he almost always go out in Tracadie and not in town and why with either Denis Albert or Losier from Tracadie?
A : A few years back, Daniel Maillet fell madly in love with a girl [. . .] from Tracadie. I do not remember her name. He dated her for almost two years. He still loves her even if he tries to hide it and it shows. That's why he goes over there. May be he is hoping they will get back together.
Q : Whether he is homosexual or not, it does not change anything. He only has to admit it and it's okay.
[...]
[26] The Complainant expected to get a written letter of refusal from the RCMP following his second meeting with Cst. St-Laurent, but as the weeks passed, none arrived. Aside from Mr. McGraw, who as mentioned earlier was not qualified for medical reasons, all the Complainant's fellow Caraquet police officers who had applied to join the RCMP were accepted. As the date for the handover of policing from Caraquet's force to the RCMP approached (November 1st, 2001), the Complainant decided to inform the media about what he perceived as the RCMP's discriminatory refusal to employ him. His case was reported on TV and radio, as well as in the written press.
[27] On October 31, 2001, an article was published in the local newspaper, l'Acadie Nouvelle. The reporter, Sylvie Paulin-Grondin, interviewed the Complainant and several others for her column, including the non-commissioned officer in charge of operations at the RCMP's Caraquet detachment, Sgt. Michel Pagé. Prior to the absorption of the municipal force, the RCMP had already been operating a detachment based in Caraquet and serving the surrounding area. Sgt. Pagé was therefore acquainted with the members of the Caraquet police department, including the Complainant, and was involved in the absorption process.
[28] To obtain this interview from Sgt. Pagé, Ms. Paulin-Grondin testified that she had left a message for him at his office. He called her back and she conducted the interview by telephone. She claims to have cited Sgt. Pagé verbatim in the article. Sgt. Pagé did not testify at the hearing. Sgt. Pagé was quoted as initially saying that he could not comment on the Complainant's case nor that of any other individual. He nonetheless went on to affirm that the Complainant's candidacy did not satisfy the RCMP's criteria. He added that all the applicants are treated equally - their medical condition, reputation, character, and finances are examined. However, he also made the following statement regarding candidates' sexual orientation:
[TRANSLATION]
But I can tell you that sexual orientation is not a criterion. The RCMP does not discriminate against a person who is gay, absolutely not! It could however create problems if the employer was not aware of it.
Let us say that a person is gay and the employer is not aware of it. That could be a risk in terms of security. If a member of the RCMP has a given orientation and does not want his or her employer to know about it, he or she could be exposed to blackmail, extortion, extraction of information. This is speaking in general terms and not about a particular case. But we must comply with the Charter of Rights. That is very important.
[29] After the publication of these remarks, neither Sgt. Pagé nor the RCMP contacted Ms. Paulin-Grondin to suggest that she had misunderstood or misinterpreted his statements.
[30] On the same day that the article was published, a letter was sent from the RCMP to the Complainant formally advising him that his application was being dismissed. It was signed by Staff-Sergeant Joseph Rogers, non-commissioned officer in charge of recruitment (Senior Career Manager) for J Division (New Brunswick). He noted that in the Complainant's case, the RCMP decided that his evasive manner during the interview and the fact that he provided information that was later found to be inconsistent, raised issues regarding his integrity and honesty.
[31] The following day, November 1, 2001, the Complainant wrote Staff-Sgt. Rogers back, complaining that he had never been told previously that he had been evasive during the interview nor that he had provided erroneous information. He was shocked by these new allegations and asked for more particulars. On November 22, 2001, Staff-Sgt. Rogers wrote back to the Complainant, advising him that the RCMP's decision had not changed and was final. His file had already been reviewed internally and a complete assessment had been made.
[32] On December 21, 2001, the Complainant filed the present complaint with the Canadian Human Rights Commission.
[33] In sum, the Complainant has led evidence that prior to being denied employment by the RCMP, questions were asked about his sexual orientation. Sgt. Pagé's subsequent remarks that an applicant's concealed sexual orientation would be of interest to the RCMP corroborates the Complainant's contention that his perceived sexual orientation was a factor in the RCMP's decision. In addition, the Complainant has led evidence of being told outright that his brother's criminal record was also a factor in the decision not to hire him. I am satisfied in the absence of an answer from the Respondent that if this evidence is believed, it is complete and sufficient to justify a finding of discrimination, pursuant to s. 7 of the Act, based on the Complainant's perceived sexual orientation and his family status. A prima facie case has been made out.
[34] Similarly, if the evidence is believed, a prima facie case has been made out regarding the s. 10 component of the complaint. Mr. Desaulniers's questions relating to the Complainant's sexual orientation - coupled with Sgt. Pagé's remarks - and the ultimate rejection of the Complainant's candidacy, suggest, in the absence of a reasonable and non-pretextual explanation, that there was a policy in place to inquire into the Complainant's sexual orientation, which may have or tended to deprive the Complainant of an employment opportunity.
IV. THE RCMP'S ANSWER TO THE SECTION 7 COMPLAINT - WHY WAS THE COMPLAINANT NOT HIRED? [35] The RCMP claims that neither the Complainant's perceived sexual orientation nor his relationship with a family member was in any way a factor in its decision not to accept his application for employment. He was refused for numerous other reasons, principally related to what was perceived as his lack of candour and honesty during his interview with Cst. St-Laurent. I have determined this explanation to be reasonable. Moreover, the Complainant has not demonstrated that the explanation was a pretext for otherwise discriminatory conduct.
[36] The security and reliability screening interview is of high significance for the RCMP, which must ensure that a member's integrity is not in doubt. The interviewer is provided a form on which the questions to be asked to candidates are set out and the answers are recorded. The form is for the interviewers' use only - it is not shown to candidates. The form used by Cst. St-Laurent during the Complainant's interview was entered as an exhibit at the hearing.
[37] In accordance with the form's instructions, Cst. St-Laurent told the Complainant from the outset that the RCMP would conduct a field investigation afterwards to verify everything he said during the interview. He therefore advised the Complainant to be honest, forthright and complete in his answers. Any deliberate attempt to lie or omit information would remove the candidate from further consideration for employment.
[38] The RCMP claims that many of the Complainant's answers were, on subsequent verification, proven untrue or incomplete, calling into question his integrity and qualities as a police officer.
[39] Cst. St-Laurent was not impressed with the Complainant's overall performance and conduct during the interview. He described the Complainant as very quiet and reticent in providing the information being sought. Most candidates are initially nervous but they eventually open up and freely engage in a discussion with the interviewer. Such was not the case with the Complainant. He was not talkative and answers often required prompting and probing on Cst. St-Laurent's part. Questions frequently needed to be repeated in order to extract a response.
[40] There is a section at the end of the interview form where the interviewer writes his overall impression of the interviewee. Cst. St-Laurent wrote that the Complainant appeared to be very nervous, and that it was difficult to get straight answers to many of the questions; the Complainant could not remember or was unsure.
[41] Cst. St-Laurent testified that these concerns about the Complainant's answers, combined with several contradictions that emerged during subsequent verifications (set out below), led Cst. St-Laurent to conclude that he could not recommend the Complainant's candidacy. Cst. St-Laurent documented these findings in a memorandum dated April 25, 2001, that he submitted to Staff-Sgt. Rogers, the Senior Career Manager.
A. Inconsistencies and discrepancies regarding the Complainant's use of drugs [42] The security and reliability interview form contains a series of questions relating to drug usage. Candidates are asked whether they have ever been exposed to or used drugs. If so, they are to explain the type of drug, the frequency of its use, the dates it was first and last used, and the circumstances or motives that gave rise to its use.
[43] The Complainant told Cst. St-Laurent that he had used cannabis and hashish. Cst. St-Laurent recorded on the form that each drug had been used twice, the circumstances being experimentation/social. As for the dates of usage, the answer indicated is don't know, it was long ago. The Complainant testified that Cst. St-Laurent insisted he be more specific but the stress of this line of questioning caused him to blank out, and he was unable to give any details.
[44] Cst. St-Laurent also asked the Complainant to provide the names and addresses of his relatives, as required by the interview form. Many of his relatives live in the United States and he was consequently unable to give these particulars during the interview either. The Complainant explained that he would be able to come up with this information after the interview. Cst. St-Laurent agreed to let him send in these details by fax following the meeting.
[45] Upon returning to his office at the Caraquet municipal police station later that day, the Complainant called his mother and obtained his relatives' contact information. He then prepared a two-page hand-written letter, which he sent by fax to Cst. St-Laurent. In it he set out these details, but also added, under the heading Section on Drugs two paragraphs specifying the two occasions on which he had used drugs. The first is listed as winter 1994, outside of a high school entrance, before entering a dance that was being held inside. The second occasion is indicated as being in the spring or summer of 1995, outside of a club named Cosmo, in Moncton. On each occasion, he states that he used marijuana and hashish.
[46] The Complainant explained at the hearing that he had in fact used the drugs in 1984 and 1985, not 1994 and 1995. He did not realize the error in his faxed letter until a few days before his second meeting with Cst. St-Laurent on May 8, 2001. The Complainant made no attempt to inform Cst. St-Laurent of the error prior to that meeting. He brought the mistake to Cst. St-Laurent's attention during the meeting, but Cst. St-Laurent said that it was too late; the decision not to recommend his candidacy had already been made.
[47] Cst. St-Laurent testified that he had indeed told the Complainant to fax in the addresses of the American relatives. It was understandable for the Complainant not to have readily recalled these details during the interview. However, Cst. St-Laurent was not impressed by the fact that the Complainant took this as an opportunity to complete or supplement some of his other interview answers. Cst. St-Laurent testified that the purpose of the interview is to test candidates' reliability and honesty, by verifying the accuracy of their answers. They are therefore expected to reply in full during the interview to all questions that are put to them, aside perhaps from questions requiring detailed answers, like a relative's address and phone number.
[48] Furthermore, Cst. St-Laurent was surprised to see the Complainant declare that he had used drugs so recently, at a time when he had already begun his career as a police officer. He was also taken aback by the age that the Complainant would have been at the time of the reported drug usage, so much so that he inscribed a comment on his copy of the faxed document: 30 years old. Cst. St-Laurent did not interpret this illegal drug usage as mere experimentation by a young person. Cst. St-Laurent testified that the RCMP will generally not turn down candidates just because they may have tried out certain less serious drugs while in high school. However, more recent usage, even as experimentation, particularly at a time when the person has already entered the policing profession, is of much greater concern. Cst. St-Laurent also wondered why the Complainant was suddenly able to remember the exact years of usage, after having had such difficulty doing so during the interview.
[49] Another of the questions asked of the Complainant during the security and reliability and screening interview was whether any police force, including the RCMP, had ever refused him employment. The Complainant replied that he had applied to join the RCMP in the mid-1980's, but was turned down at the interview stage because he had admitted trying drugs a few years earlier.
[50] Cst. St-Laurent testified that he took all the information provided by the Complainant, at face value. The refusal for drug use in the 1980's, combined with the faxed declaration that he had used drugs in 1994 and 1995 implied more than mere experimentation.
[51] As part of the verification process, Cst. St-Laurent contacted Staff-Sgt. Jacques Ouellette, the RCMP staffing officer who had interviewed the Complainant in the mid-1980's. Staff-Sgt. Ouellette had no specific recollection of the Complainant. However, he added that for him to have rejected an application on this ground, the declared drug use must have taken place on at least three or four occasions.
[52] Cst. St-Laurent therefore became generally apprehensive with the level of discrepancies that were emerging regarding the Complainant's drug use. What began as an admission of drug usage on four occasions as a form of experimentation, which had occurred so long ago that the Complainant was unable to remember the actual circumstances, had now developed into a minimum of seven or eight occasions of usage, having taken place as recently as 1995, at a time when the Complainant was a police officer by profession.
B. Inconsistencies and discrepancies regarding the Complainant's departure from the Dieppe Police Department [53] The Complainant's answers with respect to his employment at the Dieppe police department gave Cst. St-Laurent another cause for concern. The investigation conducted by the RCMP to verify the Complainant's interview answers revealed significant discrepancies.
[54] In advance of the security and reliability screening interview, candidates must fill out a Personnel Security Clearance Questionnaire, which includes a series of questions regarding previous employment. If candidates have ever been dismissed from a position, they are required to give the name of their supervisor and a brief explanation of the reason for the dismissal. The Complainant indicated in his questionnaire that he had been dismissed from his employment with the Dieppe police department in 1993, after three years service. He explained that he had been suspended and dismissed for alleged errors in his work, following which he took his case to arbitration and resigned for money.
[55] The Complainant elaborated on this incident during his interview with Cst. St-Laurent. The suspension related to an impaired driving case in which he was to testify. Unfortunately, he was ill with the flu on the day of the trial, and while waiting to take the stand, he had to step out of the courtroom to visit the restroom. It seems that the prosecutor was unable to locate the Complainant when his turn came to testify. For some reason, instead of asking for an adjournment, the Crown decided to withdraw the charges.
[56] Dieppe's Chief of Police, Terry Rouse, later notified the Complainant that he would be suspended for seven days. The Complainant filed a grievance, but some time afterwards he was fired from the police department outright. He grieved the dismissal as well. On the day of the arbitration hearing, the employer was reticent to proceed, so it offered the Complainant $40,000 to leave the force, in final settlement of both grievances. The Complainant accepted the offer. He preferred this option over returning to a workplace where his activities would be constantly scrutinized.
[57] The Complainant testified that Rouse was well-known within New Brunswick's policing community as being very strict in his dealings with his officers. He claims that he discussed this fact with Cst. St-Laurent, who knew of the Chief's reputation and agreed that this would probably explain the events that led to the Complainant's dismissal.
[58] The Complainant had brought with him to the interview documents relating to the dismissal, and offered to show them to Cst. St-Laurent. The offer was turned down. The Complainant testified that he even offered to take a lie detector test in connection with his explanation of the Dieppe dismissal, if so requested. Cst. St-Laurent has no recollection of this offer.
[59] Following the interview, Cst. St-Laurent wrote some personal remarks on the interview form. He noted that the Complainant's dismissal from the Dieppe police department and his other employment records would have to be examined closely. He added that there may be a performance issue that needed to be clarified and addressed.
[60] Cst. St-Laurent asked Dale Mitton, a retired RCMP staff sergeant, to look into the Complainant's employment history with the Dieppe police department. That city's police service had by then also been absorbed into the RCMP, as part of the provincial amalgamation process. Chief Rouse, who had dismissed the Complainant, had died several years before, so Mr. Mitton met with the former Deputy Chief of Police, Alan Parker, who was now a member of the RCMP serving in Moncton. The Complainant had listed Mr. Parker in his questionnaire as one of his supervisors at Dieppe who could be contacted for additional information.
[61] Mr. Parker told Mr. Mitton that while employed with the Dieppe police department, the Complainant had been a poor performer and did not meet the minimum standards of a junior constable. He did not complete his work on time and he never met his diary dates. He was slack in doing his work. Mr. Parker also told Mr. Mitton that the Complainant was suspended and later dismissed on account of his poor performance and his failure to meet minimum requirements. Mr. Parker confirmed that the Complainant had accepted a payout and resigned from the force. Mr. Parker also mentioned that a former Moncton municipal police officer, Paul Desroches, had once told him that the Complainant had been seen in the Cosmo night club in Moncton, drinking to excess and hanging around poor charactered people. He may even have been into drugs.
[62] Mr. Mitton met Mr. Desroches to follow up on this information. Mr. Desroches recalled having received a call from a concerned citizen alleging that the Complainant had been seen in downtown Moncton night clubs keeping company with ill charactered ladies, engaging in drinking and driving, and using drugs. Mr. Desroches pointed out that he was unable to confirm the accuracy of the information - the citizen had withheld his name. Mr. Desroches simply passed on the information to Mr. Parker.
[63] Neither Mr. Desroches nor Mr. Parker was a witness at the Tribunal hearing. Mr. Mitton testified and entered into evidence an investigation report that he had prepared and remitted to Cst. St-Laurent in late March 2001, in which these details about his conversations with Mr. Desroches and Mr. Parker were set out.
[64] Mr. Mitton also visited Dieppe's City Hall, as part of his investigation. He obtained copies of the minutes of the municipal council's meetings relating to the Complainant's suspension, dismissal and grievances, which he also forwarded to Cst. St-Laurent.
[65] The minutes of May 25, 1993, dealt extensively with the Complainant's suspension. Chief Rouse informed the council that the Complainant had been suspended with pay as a result of difficulties in his work performance since the completion of his six-month probationary period. The Chief stated that the Complainant did not meet his work requirements, referring to three or four incidents, one of which concerned the impaired driving trial, where the Chief claimed that the Complainant fell apart on the stand after direct questioning. The Chief added that the Complainant had problems responding to serious calls involving physical contacts. After some follow-up questioning, the council decided to support Chief Rouse in his decision to suspend the Complainant.
[66] The minutes of the April 25, 1994, meeting of council relate to the agreement that had been negotiated with the Complainant, in settlement of his labour grievances. Some of the agreement terms are set out, including the Complainant's undertaking to withdraw his grievances and resign from the police department, in exchange for a sum of money. Chief Rouse is cited as having assured the council that the City had a tight case, but that it would cost more in legal fees to pursue the matter rather than settle on the negotiated terms. A resolution was therefore passed approving the settlement.
[67] Mr. Mitten also obtained copies of the Complainant's employment and pay records from Dieppe City Hall. The City had provided the Complainant with two records of employment to enable him to apply for employment insurance benefits. The first was completed following his suspension and dismissal, and the second after the grievance settlement. Both forms contain a comment to the effect that the employee was not expected to return to his employment because he failed to meet [the] minimum requirements of the police department.
[68] One of the Complainant's supervisors at the Dieppe police department was Robert Bastarache, who had later joined the RCMP as part of the absorption. At the time of the field investigation, Mr. Bastarache was stationed at the Bouctouche detachment of the RCMP. Cst. St-Laurent asked Pierre Quinn, a retired RCMP investigator, to interview Mr. Bastarache. According to Mr. Quinn, Mr. Bastarache stated that he had heard a lot of rumours concerning the Complainant but that they were just rumours. Mr. Bastarache did not want to elaborate. However, he pointed out that in supervising the Complainant, he found him lacking in experience and maturity.
[69] Mr. Bastarache confirmed to Mr. Quinn that he never saw the Complainant take any drugs, come to work with a hangover, or display any other sign of substance abuse. He concluded his conversation with Mr. Quinn by stating that although the Complainant was proud to wear the uniform, he forgot [the] responsibility that went along with it. Mr. Bastarache identified the Complainant's lack of maturity as the reason for his lack of responsibility.
[70] The results of M