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HomeMy WebLinkAbout2002-2157.Grievor.08-06-11 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB# 2002-2157, 2003-1260 UNION# 2002-0362-0004, 2003-0362-0005 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Grievor) Union - and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer BEFOREVice-Chair Richard L. Jackson FOR THE UNION Gavin Leeb Barrister and Solicitor FOR THE EMPLOYER George Parris, Yasmeena Mohamed Counsel Ministry of Government and Consumer Services HEARING April 8 & 22, May 12, June 15, November 24 & 25, December 5, 9, & 12, 2005; January 4, March 6, September 19, October 25 & 25, November 20 & 30, December 1 & 14, 2006; January 4 & 5, June 7, 8, 15 & 25, 2007. 2 Decision I NTRODUCTION This is the discharge grievance of someone who will not be identified in this award for reasons that will become obvious upon reading of the award. Anonymity was requested by the Union and opposed by the Employer, but I have no difficulty agreeing with the Union on this matter and therefore will not identify the grievor by name. The reasons for this decision are set out later in this award. The grievor was discharged from his position as a Conservation Officer with the Ministry of Natural Resources on 13 March 2003, a discharge that the Union argues was without just cause. The grievor was discharged for ?conduct harmful to the Ministry?, ?contravention of WDHP [Workplace Discrimination and Harassment Prevention] operating policy?, and ?contravention of operating procedure on usage of IT resources?. The first ground listed above related to the grievor?s alleged sexual assault on, and sexual interference with, at least one minor, while the second and third grounds related to the grievor having used his Ministry computer to view pornography. The grievor?s discharge followed what might be thought of as a two-track investigation, one track being the criminal charges of sexual assault and sexual interference and the other being the use of his Ministry computer to view pornography in large quantities and wide variety, including teen pornography, child erotica, and child pornography This was an exceptionally long and complex case with a massive amount of evidence, and the resulting award is very long. In the interests of brevity, therefore, I have set out only the most salient of the facts leading up to, and following, the grievance and have also summarized both counsels? very extensive arguments. In point of fact, while there was a very large volume of evidence, there was not a great deal of disagreement between the parties as to the facts, and where there was, I will point it out. The real questions or issues in dispute here are what the facts really add up to and the reality they point to. 3 BF ACKGROUND ACTS The grievor was born on 23 January 1961. Upon graduation from a Community College in 1981 with a diploma in Forest Technology, he went to work for the Ministry of Natural Resources as a park warden in Rondeau Provincial Park on a seasonal basis for five seasons. In 1986, he joined the Queen?s Park Security Detail as a Security Officer and two years later was promoted to Supervisor, Ontario Government Protective Services, where he supervised anywhere from 12 to 24 other officers, depending on the time and circumstances. In 1990, he obtained a position as Conservation Officer, Resource Technician 4. His first position was in commercial-fish enforcement in the Maple District of MNR, which involved both gathering intelligence and investigation relating to the illegal taking and movement of commercial fish. Over the years through 1998, the grievor was involved in the investigation of the movement and sale of commercial fish within the Greater Toronto Area, the Golden Horseshoe, and eastern Ontario. The grievor married in 1982, and he and his wife had a son in 1992 and a daughter in 1996. The grievor?s marriage ended in 1997. The grievor attributes this to his work, and particularly the amount of time he was required to spend away from home, regarding this as a critical factor in the breakdown of the marriage. In 1998, the grievor obtained a new position: Intelligence/ Investigation Specialist, working as part of the Evaluation and Special Services Unit (ESSU) of the Ministry?s Enforcement section, based in Peterborough (Exhibit 117). As part of this unit, the grievor set up and supervised undercover operations ? for example, to investigate the illegal taking and sale of fish and animal parts. This would typically involve the grievor putting together a proposal for a particular investigation, getting the appropriate members of ESSU, the Enforcement Branch, and when appropriate, the Ministry, to sign off on the proposal, and then supervising (and sometimes participating in) the surveillance, with responsibility for the safety of the Conservation Officers involved in the investigation, liaison with other law-enforcement agencies, and generally acting as ?road boss? of the operation. The grievor was considered to be a good employee, a talented investigator, and someone who was able and willing to carry a heavy workload. However, there was some disagreement in the evidence with respect to how often the grievor himself had to work undercover. (This will be reviewed in some detail later in this award.) 4 ELT VENTSEADING TO ERMINATION The grievor worked in this capacity until the beginning of April 2002, when the events giving rise to this arbitration first erupted. For purposes of context, it should be noted that this was in the middle of the OPSEU strike against the Employer in the bargaining for the new collective agreement; as a result, bargaining-unit members were not on the job and, like other units of the Ontario Public Service, the ESSU was in ?strike mode?. On 1 April 2002, Ed Vervoort, Manager of the ESSU, received a voice-mail message from the grievor indicating that he was in some sort of trouble. Contacting him by phone, Mr. Vervoort was told that the grievor was in police custody and expected to be charged under the Criminal Code with sexual interference and sexual assault. In response to Mr. Vervoort?s question as to whether or not the charges were valid, the grievor responded, ?some may be; some aren?t?. Mr. Vervoort and the grievor talked several more times that night. That same day, the grievor was charged with one count of sexual assault on a minor and one count of sexual interference on a minor, a neighbour child, who in later years babysat the grievor?s own children. On 2 April 2002, the grievor sent the following e-mail to a group of his fellow Conservation Officers. I know that as of late this forum is about the strike and all the issues around it. However, for me, right now this is a minor thing in the bigger issues of life. I am here to apologize to each and every one of you, for when I read what we in the OCOA say we as Conservation Officers are all about?.pride, truth, trust, integrity?etc., I am sorry to say I have let all of you down. When you have problems in your life, be they marriage, medical or psychological, you have to face those problems head on because if you don?t it will only hurt you further in the long run. I did not face the reality of some problems and as a result, I have hurt some people. No amount of apologies can take away the hurt that I did. Nor will it take aware the shame I feel for what I have done. I am sure that some of you think of me as a good Conservation Officer, and I do appreciate that, however an Officer is only as good as the oath that he subscribes to. I am taking a leave of absence to deal with my problems and at this point I do not know if I shall ever return as a Conservation Officer. If I don?t, then I want to thank all the Officers that I have worked with for their support over the years and perhaps someday I will meet you over a fishing hole somewhere. On April 16, four more charges were added ? three of sexual assault and one of sexual interference on minors. These latter charges related to three other children, who ranged in age from 6 to 18 (according to Mr. Vervoort?s testimony) and included the grievor?s own daughter. 5 He was released on his own recognizance, subject to a number of conditions stipulated by the court, one of which was that he would have to move out of the area. He moved at this point to another city to live with his parents, as surety. Over the next week or so, a number of e-mails and phone calls took place between the grievor and the Ministry, and on May 3, he requested a six-month leave with pay (Exhibit 18). The Ministry refused this request but did suspend him with pay for 20 days, effective 13 May 2002; in the same letter,the grievor was advised that the Ministry had commenced an investigation into possible improper conduct on his part. The suspension with pay was extended for another 20 days, effective June 10. On May 9,the South Simcoe Police Service had searched the grievor?s home and confiscated two computers, which were subsequently sent to the Ontario Provincial Police unit for analysis. Ed Vervoort and Allan Sullivan, Acting Supervisor of the ESSU, were both present with the grievor during the search. According to Mr. Vervoort?s evidence, the grievor expressed surprise that it had taken so long for the police to come and search his house, and stated that during this period he had removed a lot of material from his computer. The grievor denies this and testified that was he had said was that ??I could have deleted stuff off my computer if I?d wanted to?. He also denied that he had actually deleted anything. Cross-examined closely by Union counsel on this aspect of his evidence, Mr. Vervoort insisted that he had remembered the grievor?s words correctly, although there did not appear to be any notation to that effect in any of Mr. Vervoort?s extensive notes on these events. Although Allan Sullivan testified for the Ministry, he was not asked about this alleged statement, in either direct or cross examination. On May 15, the Ontario Provincial Police provided Ministry officials with a copy of the material on the grievor?s hard drive. Mr. Vervoort was advised that the grievor might have used his work computer to communicate with the alleged victims related to the sexual-assault charges and also that there might be pornographic materials on it. After initially reviewing the hard drive and confirming that there appeared to be inappropriate materials on it, the Ministry sent the hard drive from the grievor?s work computer to the Ontario Centre for Forensic Sciences (OCFS) for further analysis. 6 On July 4, the Ministry advised the grievor that it was allowing him to recommence his work, but remotely, from the home of his parents where he was now living. The grievor testified that he was very happy to be back working, since it would allow him to be of use and also that it helped him think that he could now put these things behind him: ?They?d done their investigation and were going to bring me back to work.? On August 8, the Ministry received a report from the Centre for Forensic Sciences. A list of Internet sites that had been visited by the grievor was copied onto a CD-ROM and included with the report. On the basis of the names of a number of the sites, it was concluded by the Ministry that these sites probably were pornographic and might involve child pornography. As part of the investigation, Ed Vervoort examined a sample of these sites, which he described in his testimony as depicting ?various aged females, nude?the worst I?ve ever seen.? Because of the very large amount and variety of types of pornography, the decision was made to bring in an independent, external investigator to examine the contents of the grievor?s hard drive more thoroughly. Pursuant to this decision, Grace Shore, of Charles Novodroski and Associates, a human-resource management consulting firm, was engaged. Ms. Shore had done a number of WDHP investigations for various public- and private-sector employers, including an investigation involving a 2001 case in which a large number of employees at the Ministry of Natural Resources had been disciplined, including several discharges, for accessing inappropriate 1 materials ? referred to colloquially within the Ministry as ?Computergate?. Ms. Shore was provided with a copy of the CD-ROM, the list provided by the OCFS, and a special computer in order to conduct her investigation. In briefing Ms. Shore, Ministry officials told her that the grievor had been charged with several counts of sexual assault and sexual interference on minors, the alleged victims including his daughter and the now 14-year-old babysitter of his own children, who had been nine years old when he had first assaulted her. Ms. Shore was also advised that the South Simcoe Police suspected that the grievor might have used his Ministry computer to lure children. Ms. Shore?s brief, at this point, was to look at all aspects of the grievor?s use of his Ministry computer, specifically the following: Was the inappropriate material found on his hard drive legal or illegal? Was it frequent or infrequent? Did he use the 1 This case resulted in an arbitration award, Re Ministry of Natural Resources and OPSEU (Wickett, et al.) (GSB 2001-0542, Petryshen), 2005. 7 Ministry?s Internet Service Provider or his own? Did any of his MSC and ICQ chat-line activity involve any of the alleged victims associated with any of the six criminal charges? Did his computer use violate the Ministry Workplace Discrimination and Harassment Prevention (WDHP) policy and, if so, to what extent? Ms. Shore found that the CD-ROM provided by the Centre for Forensic Sciences contained the equivalent of 99 printed pages of lists of Uniform Resource Locators (URLs) or, in layman?s terms, web page addresses. She chose a sample of 12 of those pages (ranging in date from 3 August 2000 to 17 February 2001), identified suspect addresses on the basis of either their suggestive titles or her knowledge of such sites gained from previous investigations, called them up on the computer she was using for purposes of the investigation, printed them out, and confirmed that they included a wide variety, including teen pornography, child erotica, and child pornography. She contacted the Ministry to ask if they wanted her to investigate beyond those 12 pages; they replied that they did not. She compiled these into a binder and submitted it to the Ministry. This binder was submitted into evidence (Exhibit 4). It consists simply of the ?title? pages of the web sites; it was not possible to determine how far into any of the web sites the grievor might have gone. Exhibit 4 is approximately two inches thick. Pursuant to all of this, on September 23, the grievor was advised that the Ministry had uncovered new forensic evidence and that it would be reviewing this evidence in detail and would want to interview him in that regard. He was also advised that he was being suspended again, with pay, 2 The grievor testified that he was ?pissed off, for 20 days, pursuant to the Public Service Act. plain and simple? at this new suspension, that he could not understand why ?they would bring me back to work and then resuspend me?. . There was a meeting between the grievor and Ed Vervoort on 8 November 2002According to Mr. Vervoort, the grievor took the position that, although he was using his Ministry computer, he had been using his own Internet service provider (ISP) and viewed pornography only at home and not on Ministry time, so he had not violated the Employer?s WDHP Policy. 2 It should be noted that, from this point on through to the date of his discharge on 13 March 2003, the grievor was kept on a series of 20-day suspensions, with pay, pursuant to s. 22 of the Public Service Act. 8 Ms. Shore?s final report (Exhibit 106) was submitted at the end of January 2003 but was, in fact, the third version of the report. The first version, submitted November 29, dealt solely with the grievor?s use of his Ministry-supplied computer to view pornography, and related questions such as whether or not he knew this to be unacceptable pursuant to the Ministry?s WDHP policy and whether or not he had used his computer to contact any of his alleged victims, a question that he refused to answer because of the ongoing criminal charges. The grievor was provided with a copy of this report and the opportunity to comment upon it, which he did, in writing, on December 10. In the meantime, however, the Ministry had acquired a copy of a report by the Office of the Children?s Lawyer, which had been ordered on 24 June 2002 by the family-court judge presiding over the grievor?s dispute with his ex-wife over custody of their children. The Report of the Office of the Children?s Lawyer was commissioned in respect of this situation. This report delved into the grievor?s relationship with his own children as well as with two sisters living 3 nearby, by then aged 14 and 15. It focused principally on the grievor?s relations with all of these children, the eldest of whom (one of the girls living nearby) was described by various witnesses and in various documents as the grievor?s girlfriend and/or fiancée. Issue of the Report of the Children?s Lawyer In order that readers of this award can understand the role that the Report of the Office of the Children?s Lawyer played, both in the disciplinary process and in the arbitration process, it is necessary to digress at this point from a more or less chronological recounting of events to briefly deal with the legal issues surrounding the report. From the point at which the grievor became aware that the Ministry had acquired a copy of the Report of the Office of the Children?s Lawyer, a report that was part of his family-law file, he had taken the position that, by being in possession of the Report and making use of it, the Ministry was in violation of the publication ban associated with his criminal proceedings. He continued to take this position throughout his communications with the Ministry, both oral and written, up to and beyond the time of his termination. The Ministry, for its part, argued that it had obtained the Report entirely legally and was entitled to rely on it. On 13 March 2003, the grievor went to family court to seek a sealing order with respect to his entire family-law court file, which, as noted, included the Report of the 3 For the sake of anonymity, these children are designated ?X? and ?Y?, respectively. 9 Office of the Children?s Lawyer. A sealing order was signed on 21 March 2003 but not issued until 4 November 2004. The Report became a significant issue in the arbitration, with counsel for the Union arguing that the Report of the Office of the Children?s Lawyer could not be admitted into evidence because of the sealing order that the grievor had obtained. The Ministry took the opposite position, arguing that it had obtained the Report entirely legally ? in December of 2002, well before the sealing order was signed in March of 2003 ? that the contents of the Report of the Children?s Lawyer had significantly influenced its decision making, and without having access to those contents, an arbitrator would be left in the dark as to a good part of its rationale in deciding to dismiss the grievor. Submissions were heard, and I issued an interim award agreeing with the Union?s position, dated 9 January 2006, as follows: The real issue before me is simple: a Superior Court Judge has issued an order that the file containing the Report, and for which the Report was created in the first place, is to be sealed from the public. This arbitration is a public proceeding, the resulting award will be a public document, and this entire process is indisputably a public enterprise. Therefore, I am legally precluded and prevented from accessing the Report. The fact that, without it, I may fail to develop a full and complete appreciation of the complete truth of what happened is unfortunate, but is trumped by the fundamental requirement to obey the law?. Unless the Employer can get the sealing order lifted pursuant to Section 6(1)(b) of the Courts of Justice Act or by appealing to Judge Olah, the report may not be entered into evidence. With respect to viva voce evidence, it goes without saying that Karen Logan, the author of the Report, may not be called. Other Employer witnesses may testify to the fact that there wasa Report of the Children?s Lawyer and that the Ministry relied on it, but they may not testify as to its contents. The Employer is free to adduce any evidence with respect to information that may be included in the Report that it feels would establish its reasons for discharge, within proper limits, as long as it is obtained from sources other than the Report or other sealed material. Pursuant to my interim decision, the Ministry sought permission from the Superior Court of Justice to use the Report and, in a decision dated 7 July 2006, Justice Del Frate lifted the sealing order on the family-court file, subject to the condition that no minors should be identified in any way. It might be noted here that Justice Del Frate also observed that the sealing order should not have been granted in the first place. The Report of the Office of the Children?s Lawyer was then entered into evidence in this proceeding but with the names of any minors deleted (Exhibit 92). Counsel for the Ministry requested that Justice Del Frate?s decision be appended to this award. I 10 have declined to do that because it identifies a number of people (including the grievor) who should not be identified. Let me briefly recapitulate the sequence of these events because they can be very confusing. April 2002 Grievor charged criminally; publication ban issued with respect to alleged victims? and grievor?s names June 24, 2002 Family Law Judge orders Report by the Officer of the Children?s Lawyer in respect of grievor?s custody dispute with his ex-wife October 17, 2002 Report submitted to Family Court December 2002 Ministry legally obtains a copy of the Report December 2002 ? March 2003 Grievor objects to Ministry having copy of the Report, refuses to answer any questions with respect to it March 13, 2003 Grievor obtains order sealing family-law file, which includes the Report March 13, 2003 Grievor terminated April 2005 Arbitration commences; Union advises that it will object to admissibility of the Report into evidence December 12, 2005 Argument presented on admissibility of Report January 9, 2006 Interim award issued agreeing with Union motion July 7, 2006 Justice Del Frate unseals Report, subject to no identification of minors October 24, 2006 Report is entered into evidence as Exhibit 92. The Report of the Office of the Children?s Lawyer provided the Ministry with a sort of window into the initial track of the investigation ? the criminal charges ? which the Ministry had necessarily left to the South Simcoe Police. According to the evidence of Greg Sones, Director of the Enforcement Branch of the Ministry of Natural Resources, the police wouldn?t tell the Ministry very much about the investigation, with the result that the Ministry?s investigation followed the other track ? namely, misuse of the grievor?s Ministry computer in viewing inappropriate materials and, possibly, contacting one or more of his alleged victims. The Ministry?s acquisition of a copy of the Report of the Office of the Children?s Lawyer, in a sense, now brought the Ministry?s attention back onto the original track: the alleged sexual assault and sexual interference on several minors. The Ministry therefore wrote to the grievor, on December 13, advising him that it had acquired new evidence and was thus broadening its investigation, 11 and directing him to attend an interview with Ms. Shore on December 20. This meeting was subsequently postponed to 6 January 2003. At that meeting, Ms. Shore asked the grievor a number of questions relating to the contents of the Report of the Office of the Children?s Lawyer. However, because he was facing criminal charges, and on the advice of his criminal lawyer, he refused to answer any of these questions. As it turned out, in deciding to terminate the grievor, the Ministry apparently made use of only one part of the Report of the Office of the Children?s Lawyer ? namely, the sentence set out below. The investigator read the CAS files and reviewed an e-mail in which [the grievor] stated that he did molest Y?s younger sister, X, that he was sorry, and that he was sick and 4 needed help. According to the clinical notes of the grievor?s psychologist, the sexual assaults on X took place 1997 through 1999, over the period when she was 9 through 11 years old. The grievor?s romantic relationship with Y started in 2001. Ms. Shore submitted a second draft report in late January,and as before, a copy was sent to the grievor. Again, the grievor was provided with a copy and was given the opportunity to comment on its accuracy. He responded as follows. From: [Grievor] Sent: January 27, 2003 4:45 PM To: Messervey, Janet (MNR) Subject: Re: Confidential: WDHP Draft 2 Importance: High Further to your e-mails, it is important that you understand a number of serious issues that you are going to have to deal with, especially as the Co-ordinator of WDHP. First I will deal my response to the second draft report. As I indicated last Friday, I was sick all week and was only getting to the review over the weekend. As such, a written response would not be received by yourself by noon today as I am not prepared to provide a response over the internet to such a delicate and sensitive matter. Thus, a written response, if any, will go out today via Express mail and be received tomorrow at the earliest. Secondly, as the WDHP Co-ordinator, I believe it is your responsibility to ensure that actions taken by any Ministry staff, even during a WDHP investigation, are neither harassing to the employee or embarrassing to the Ministry and the Government as a 4 It should perhaps be noted here that, at this point, the Ministry did not have an actual copy of this e-mail (Exhibit 126) but acquired it in December of 2006, more than a year and a half into the hearing. 12 whole. Also it is your responsibility to ensure that I never have to work in a poisoned work environment that will effect both my professional work ethics as well as my personal life. In the first matter of harassing/embarrassing actions, during the most recent WDHP interview, Ms. Shore asked questions relating to a Children?s Law Office document and my Interim Release of Recognizance, indicating that these are public documents. I must inform you that as is consistent with any criminal allegations similar to the ones I am facing, the court imposes a publication ban to protect both myself and the alleged victims from being identified in any way, shape or form and to protect any evidence which either the crown or defense may be presenting at any time during any proceedings which take place. The production of these documents clearly breaches the publication ban as laid down by the criminal court of this Province. In light of this, the Ontario Government through the Ministry of Natural Resources and the Ministry of Attorney General, including any employees responsible for the distribution and use of these documents, has place itself in the extremely embarrassing position of facing several Criminal Code charges. You [sic] immediate attention to this matter in the form of a meeting between the yourself [sic], the Deputy Minister, myself and legal counsel to revolve this very serious breach of criminal law may prevent further embarrassment. As to the second matter, poisoned work environment, I am currently reviewing with legal counsel and the Union a number of labour violations that have taken place with relation to Enforcement Branch and it?s [sic] operation. They are serious allegations for which the Ministry will have to answer and have the potential to bring extreme public embarrassment to the MNR?s Enforcement program and the Ontario Government as a whole. This review should be completed shortly, at which time I would be willing to discuss options for dealing with them. As you can see, both these matters are extremely serious and have the potential for bringing public embarrassment to the Ontario Government. I feel that both these matters will fall within WDHP operating policy concerns and as such will warrant an internal investigation. As such I am asking your confidentiality as it lent to any WDHP investigation and not identify to potential witnesses in Enforcement Branch my concerns until I am prepared to bring the poisoned work environment evidence or any evidence forward. If you have any questions, please contact me. [Grievor] The Grace Shore Report At the end of January, Ms. Shore submitted her final report (Exhibit106). By way of context for the grievor?s use of his Ministry computer to view pornography, the report set out the precautions against such use: An examination of the computer system indicated a warning on every Ministry computer. This warning appeared before entering the respondent?s name or password and stated, 13 ?YOU ARE NOW LOGGING ON THE MINISTRY OF NATURAL RESOURCES COMPUTER INFRASTRUCTURE. UNAUTHORIZED USE OF THIS COMPUTER SYSTEM IS PROHIBITED.? A second warning automatically appears on the computer screen before the respondent can proceed any further. It read as follows: ?Windows Script Host As with other government resources, Information Technology (IT)resources [e.g. Email, Internet/Intranet] are to be used exclusively for government business, unless authorized by the employee?s manager. As has always been the case, the government has an interest in ensuring that government resources are used by employees only for business purposes. Specifically, IT resources are not to be used for purposes that the Operating Procedure on Usage of IT Resources lists as unacceptable, such as to access, display or store offensive data, for personal or private business, or to send anonymous messages. Consequently, if the government has reasonable belief that IT resources are being used inappropriately by an employee, it will monitor this usage to determine whether any disciplinary or other action should be taken. The full text of the Operating Procedure is available for review at: Intra.cpb.gov.on.ca By selecting the box indicated below, you acknowledge that you have read this advisory notice.? The respondent must then press a key, acknowledging, before proceeding. The evidence also showed, in November 1998 a memorandum was issued by the Deputy Workplace Discrimination Ministry, Ron Vrancart, to all MNR staff under the Subject: and Harassment Prevention (WDHP) Zero Tolerance Message. The memorandum read as follows: The Ministry of Natural Resources has a zero tolerance policy with respect to discrimination and harassment in the workplace?. It has been brought to my attention that there is a disturbing new trend that many Employers, including MNR, are currently experiencing ? specifically, the use of Ministry computers to access pornographic and other questionable material from the Internet. It goes without saying that the use of computers for anything other than government business is not allowed. However, you also need to be made aware that the accessing, presence and/or displaying of pornographic or other offensive materials on Ministry computers can create a poisoned work environment and may be in direct violation of the WDHP policy. Depending n the material, there may also be implications under the Criminal Code of Canada. The use of Ministry equipment and/or work time to access offensive materials of any kind is unacceptable and will not be tolerated. It will result in disciplinary action, up to and including dismissal?. ?.The evidence showed Deputy Ministry [sic], John S. Burke issued a memorandum on Workplace Discrimination and June 29, 2001 to all MNR staff under the Subject: Harassment Prevention (WDHP) Operating Policy and Operating Procedures on the Usage of IT Resources. The memorandum reads as follows: 14 Last month, on May 23, I advised you that an investigation was underway into allegations of misuse of the government?s information technology resources. The investigation is now complete. A total of 189 employees were identified as having material on their Outlook email accounts that contravened the Workplace Discrimination and Harassment Prevention (WDHP) Operating Policy. Action taken against these employees ranged from verbal warnings, letters of reprimand, suspensions without pay as well as 6 (six) dismissals. ?I want to remind all employees of my expectations concerning the Workplace Discrimination and Harassment Prevention Operating Policy and the Operating Procedure on the Usage of I.T. Resources?. It is also my expectation that all employees adhere to the Operating Procedure on the Usage of I.T. Resources, which clearly states that computer systems and networks must not be used for illegal or unacceptable activity?. Accessing, presence and/or displaying of sexually explicit or other offensive materials on government computers creates a poisoned work environment and is in direct violation of the WDHP Operating Policy. In addition, there could be implications under the Criminal Code of Canada, depending on the nature of the material. Ms. Shore?s report came to the following conclusions, amongst others: 1.That the grievor, like all MNR employees, had been made well aware of the proper and improper use of Ministry IT resources and knew that it was inappropriate to use those resources ? both hardware and software ? for purposes of pornography. Indeed, the Ministry?s WDHP Policy, with additional guidance to employees precipitated by ?Computergate?, was brought out in exhaustive detail in the report. 5 2.That the grievor had been fully aware of ? and, indeed, peripherally involved in ? Computergate. 3.That the grievor arranged for and used his own Internet service provider (ISP) on his MNR computer. 4.That the grievor accessed Internet chat lines through the ?Messenger? and ?ICQ? services. 5 There is some dispute as to the degree of the grievor?s involvement in the previous case: the Ministry claimed that he had received a letter of warning; however, he denied that and no such letter was ever tendered in evidence. It was undisputed, however, that he was at least spoken to by a supervisor on 31 May 2001 about a couple of inappropriate e-mails, and there is documentary evidence of this (Exhibit 79). 15 5.That, according to the grievor, members of supervision and management in the Ministry were aware of his having a personal chat line on his government computer and had never instructed him to remove it. 6.That, because he was using his own Internet Service Provider for his Messenger and ICQ services, by virtue of the fact that members of management and supervision had known that he had such services on his Ministry computer, and because they had never voiced any objection or ordered him to remove them, the grievor made the argument to Ms. Shore that what he did with his Ministry computer fell outside the lines of WDHP prohibitions against accessing inappropriate sites. 7. That the grievor used the Messenger and ICQ chat lines to communicate with several of . his alleged victims, including his fiancée, during working hours 8.That the grievor, without authorization, had installed a program called ?Mutilator?, the purpose of which was to thoroughly erase computer files in order to enhance security. 9.That the grievor accessed numerous sites that the investigator characterized as ?containing sexually explicit, incest, teen, young girl and boy, rape, and depictions of young children in sexual acts.? (Exhibit106) 10.That, in respect of such sites, the grievor explained, ?I have accessed them because you come across them. No [I] do not search for them specifically. I do search for teen sex.?It is illegal to download, to purposely go searching for child pornography now. It is not if you are searching and you come across the site. There is a difference.? In respect of accessing pornographic sites generally, the grievor stated, ?I was a single male who has surfed the Internet for pornography.? (Exhibit 106) 11.That, notwithstanding the grievor?s statements and rationale as outlined above in paragraph 10, he did not inadvertently stumble upon such sites but, rather, visited many of them repeatedly and frequently. The access using the respondent?s personal Internet account and Ministry equipment was not a one, a two or even a three, time occurrence. The respondent accessed inappropriate sites on hundreds of occasions. The investigator only examined a random sample from the volume of pages of Internet sites accessed by the respondent. The respondent was also able to clearly interpret his understanding. The Internet History account evidence illustrates the respondent accessed sites (68 times in one day that could potentially be illegal sites. (Exhibit 106) 16 12.That the grievor had refused to answer any questions arising out of the Report of the Office of the Children?s Lawyer that could possibly be related to his criminal charges. The Events Immediately Preceding the Termination On 18 February 2003, the Ministry sent the grievor the following letter. Dear [Grievor] The Ministry has completed its investigation into allegations that you used information/ technology/Internet usage as it relates to the Ministry equipment in a manner that violates the provisions of the Operating Procedure on Usage of I.T. Resources and the Workplace Discrimination and Harassment Prevention (WDHP) Operating Policy. Attached you will find a copy of the Final Report. Additionally, the Ministry has completed its investigation into allegations that you have engaged in conduct harmful to the Ministry including breach of trust, engaged in conduct harmful to the reputation of the Ministry and engaged in conduct that is inconsistent with your duties and responsibilities as a Conservation Officer. In consideration of the evidence and your responses to the evidence the Ministry has concluded that the foregoing allegations are substantiated. To assist me in determining what, if any, discipline should flow from this, I have scheduled a meeting for 11 am, Tuesday, February 25, 2003 in the Galsworthy Boardroom at the Delta Chelsea Hotel in Toronto. Your attendance at this meeting is mandatory. Be advised that you may be accompanied by a Union representative. If you do not attend, please be advised that the meeting will proceed in your absence and I will make my decision based on the information currently available to me. Sincerely, Greg Sones, Director, Enforcement Branch In response, the grievor sent the following message. From: [Grievor] Sent: Friday, February 21, 2003 12:08 PM To: Greg Sones Subject: Confidential: WDHP Disciplinary Hearing Importance: High Greg I received your letter and package yesterday morning. I have been extremely cooperative during this entire process and wish to continue to do so, however, I have reservations about continuing onward at this point until one issue is resolved. It is a very serious issue which I brought to Janet Addyman?s attention. During the last interview, I was questioned over a number of documents and one in particular has serious legal 17 ramifications for the Ministry of Natural Resources and possibly the Ontario Government as a whole. As you are well aware, I am facing some very serious criminal allegations. Due to the nature of the allegations, a criminal code publication ban was put into place. The ban is not just a traditional media ban, but however, is issued under different sections of the code and covers any document in any form. Due to the fact that the Ministry of Natural Resources obtained this document as a ?public document?, it constitutes a criminal breach of the ban in place. Ms. Addyman?s refusal to meet with and resolve this issue with my criminal counsel has left me with no other choice but to proceed with having a criminal contempt of court investigation initiated. This in now being dealt with through my legal counsel in conjunction with the crown?s office. I do not think it prudent for the Ministry of Natural Resources to proceed at this point with a WDHP disciplinary hearing based upon all the documentation within the final report. I am willing to proceed based upon a revised final report excluding anything that is based upon the criminally banned documents. I appreciate your soonest attention to this matter. [Grievor] The meeting went ahead on February 25, and the grievor was accompanied by a Union Steward, Elaine Bagnall; Mike Kindree, then Manager of the ESSU, also attended. The grievor was asked if there were any mitigating circumstances that the Ministry should take into account before deciding what to do in respect of his situation. The grievor replied that, yes, there were such circumstances, but because they were bound up with his criminal charges, he was under instructions from his criminal counsel not to speak about them. The following account of the grievor?s answer to this question is taken directly from Mr. Sones?s interview notes (Exhibit 95). Grievor: There are mitigating circumstances I would like to be able to discuss. Some are psychological, some work-related, also part of a defence package. I was concerned that they may end up with the police or Crown. [The grievor] has two counsel, labour and criminal. Been advised by criminal counsel not to say anything ? ?.concern has to protect rights ? constitutional rights. Would like the opportunity to go back to criminal counsel to discuss this particular question. The grievor was afforded three more days to confer with his criminal counsel in view of this situation, and to advise the Ministry of any factors that might be pertinent to mitigation of his culpability. The grievor talked with his criminal lawyer, but he continued to decline to cite any mitigating factors. On February 28, the grievor sent the following e-mail to Greg Sones (Exhibit 96). Subject: Confidential WDHP Hearing Importance: High 18 Further to our meeting of February 25, 2003. I have spoken to counsel about the issues of mitigating circumstances and family law documents. I have once again received advice from counsel that I am not to comment on any mitigating circumstances due to the fact that criminal allegations are still before the court. Thus, at this point in time, I cannot discuss this issue with you any further until the criminal allegations have been dealt with in full. My counsel has also been dealing with the family law documents for which I have raised concerns. Yesterday he and the Crown both dealt with the Clerk of the Family Court. The ban in question is under Section 486 of the Criminal Code. The Clerk of the Family Court has advised both counsels that the family law documents are indeed a public document for anyone to request copies of. However, since there has been a ban under Section 486 of the Code, the Family Law file must be sealed or access to it and distribution of it to the public (including you, as my Employer) constitutes a breach of the ban. Arrangements are now being made to ensure that these documents are sealed as they should have been. The Crown is arranging for the investigating officer of the criminal case to contact you and explain the ban. Any use or further distribution of the documents in your possession will constitute a break of the ban and I will move this to the presiding judge for contempt charges. If you have any questions, please contact me. [Grievor] On Monday, March 3, Greg Sones replied to the grievor in the following e-mail (Exhibit 86). Further to your e-mail of Friday February 28, 2003, I have read the e-mail. Could you provide me the name of the Crown and/or investigating officer for the criminal case so that I can contact them directly so they can explain section 486 and the ban as per your e- mail. Also, if you have a copy of the court order, I?d appreciate it if you could fax it to me. I have a confidential fax line: the number is [fax number redacted]. Later that day, the grievor responded to Mr. Sones with the following e-mail (Exhibit 124). Greg I do not know who the Crown is that is handling my case. My criminal counsel is the only person who discusses any issues with the Crown on my behalf. Since you have had contact with the South Simcoe Police Service, I am sure you know who the lead investigator is or have a contact in that force. At this point, I am not sure who it is as again my counsel is the only person who speaks to them. As I indicated in my email, the crown is directing the lead investigator to contact you and discuss the 486 ban. The crown was provided with your name and office number. I do not have a copy of the ban, only my counsel does. As I am sure you realize, you as my employer, even though you are an enforcement agency of the Ontario government, are still treated as a member of the public in the criminal court?s eyes. The crown, police services involved and even my own criminal 19 counsel must be very careful discussing any aspects of this case with you due to the various bans that are in place. I provided Ed Vervoort with contact information for my criminal counsel. Here it is again. Mark Kelly, Barrister and Solicitor, [telephone number redacted]. You may contact him if you wish to obtain the Crown?s name. I do not know that he will be of much help beyond that. I will let him know in the morning that you may be calling. If you have any further questions, please feel free to contact me either by email or phone. On March 10, the grievor received two e-mails containing letters as attachments; the first notified him that his suspension with pay was being extended for another 20 days, while the second instructed him that he was to attend a meeting on March 13 for the purpose of hearing Mr. Sones?s decision with respect to the allegations against him. In response to the second of these letters, the grievor sent the following e-mail to Mr. Sones (Exhibit 87). Greg I received your email and letter dated March 10, 2003. This email is to advise you that I will be tied up in Family Court on Thursday, March 13, 2003 in the morning. I would therefore ask that the meeting be changed until later in the day, perhaps at 1:00. This will allow me time to complete my matters in Family court and then attend the meeting. I have also not heard from you in regard to your position on the documents in your possession which breach the Criminal Code 486 ban. I would remind you that both the Crown and my criminal counsel have discussed this matter with the Family Court and agree that the documents constitute a break of the ban and must be sealed as identified by the Clerk?s office of the Family court. I have taken this one step further and confirmed this position with the Senior Group Leader of the Clerk?s Office of the Family Court. Use of the documents will also constitute a breach of the Ontario Courts of Justice Act under which authority the documents are sealed. Please advise me soonest of your position on this. If you have any questions or concerns, please contact me. As a result of this request, the March 13th meeting was rescheduled to the afternoon. At the meeting, the grievor was advised that he was being terminated. The letter of termination is set forth below. March 13, 2003 Grievor?s address Dear [Grievor]: 20 In a letter dated February 18, 2003, you were informed that the Ministry had completed its investigation and substantiated the allegations of misconduct against you. Specifically, the Ministry had determined that you had in fact used Ministry equipment in a manner that violated the provision of the Operating Procedure on Usage of I.T. Resources and the Workplace Discrimination and Harassment Prevention (WDHP) Operating Policy; engaged in conduct harmful to the Ministry including breach of trust; engaged in conduct harmful to the reputation of the Ministry; and engaged in conduct that was inconsistent with your duties and responsibilities as a Conservation Officer. At our meeting on February 25, 2003, the Ministry provided you with an opportunity to respond to the findings of the investigation, and you were provided an opportunity to provide information that would explain or mitigate your conduct. Based on this meeting, and your request to consult your criminal counsel, you were also provided an opportunity to submit additional information by February 28, 2003. Your responses have failed to provide adequate information that would explain or mitigate your conduct. Furthermore, the limited answers that you provided were not satisfactory. Your conduct is especially egregious in that you are a Ministry Regional Intelligence/ Investigation Specialist appointed as a Conservation Officer with the powers of a peace officer, and that a high level of public trust was placed in you based on the duties of your position. It is the Ministry?s position that your misconduct has irreparably breached any trust or confidence in you. Based on our investigation and taking into account the information and responses that you have provided, the Ministry finds that the following misconduct has been substantiated: Conduct Harmful to the Ministry You have engaged in conduct that is harmful to the Ministry, including conduct that is harmful to the Ministry?s reputation, conduct that involves a breach of trust, and conduct that is inconsistent with your duties and responsibilities as a Conservation Officer. Contravention of WDHP Operating Policy You knowingly contravened the WDHP Policy by accessing inappropriate Internet sites through your workplace computer. Contravention of Operating Procedure on Usage of IT Resources You knowingly contravened the Operating Procedure on Usage of IT resources by performing non-work related, inappropriate activities on your workplace computer, including accessing inappropriate sites. Upon review of all the information obtained through the investigation, your responses to the findings of the investigation and the evidence collected, the mitigating circumstances that you identified on February 25, 2003, and a review of your employment file and record, I have determined that you are responsible for the misconduct and breaches which are discussed above and the appropriate penalty is dismissal for cause. As a result, I am exercising my discretion under the Public Service Act to dismiss you from employment effective immediately. Please make arrangements to return to Mike Kindree, Manager of ESSU, any Ministry property that you may still have in your possession. 21 Further, it is our understanding that you have been charged with various criminal offences in contravention of the Criminal Code and that these matters are currently before the court. Please be advised that the Ministry will be relying on any criminal convictions or other information arising from the criminal charges as additional grounds for discharge. Please be advised that you have the right to grieve your dismissal. Sincerely, Greg Sones, Director, Enforcement Branch The grievor testified that, when he received the summons to this meeting, he was both surprised and worried ? surprised because he had just been notified on March 10 of the further 20-day suspension, and worried because he anticipated that he would receive a suspension without pay of some duration. He also testified that, when advised that he was being dismissed, he was shocked, given his long-time service, his clean disciplinary record, and the fact that the criminal charges had not been disposed of. While admitting that accessing pornography was inappropriate, at the time of his dismissal (13 March 2003) he was still "rationalizing [his own word, in testimony]? the seriousness of such behaviour in view of the facts that (1) access was made through his own ISP and (2) both supervisors and at least one Ministry IT specialist knew about his personal chat lines and did not express any objection. The grievor filed the grievance on 22 May 2003, claiming dismissal without just cause. ESG?D VENTSUBSEQUENT TO THE RIEVORSISCHARGE In August of 2003, the grievor contacted the Toronto Police Service in an attempt to have Grace Shore, Greg Sones, and two others in MNR, including Deputy Minister John Burke, charged with being in possession of child pornography ? that is, the pornographic material that was now part of his own disciplinary file ? and for violation of the publication ban by virtue of being in possession of the Report of the Office of the Children?s Lawyer. The accusation of possession of child pornography was investigated by Detective John Menard, of the TPS Sex Crimes Unit, but he declined to deal with the publication-ban issue, it not being within the mandate of his unit. Detective Menard went through what was provided with the disciplinary case file and examined 22 the images. He found a large quantity of what he described as ?child erotica? (involving children under 18 years old) but only three images of actual ?child pornography? (involving children under the age of 18 actually engaged in sexual activity or images focusing on the genitals). While he kept these three images, he returned the grievor?s disciplinary file to MNR and declined to lay charges against anyone there, given that there was no criminal intent on the part of anyone at the Ministry or Grace Shore. Detective Menard testified that he did consider charging the grievor; however, in view of the fact that the Toronto Police Service was not controlling the investigation, he decided not to do so. He testified that he thought it was ?odd? that the grievor was concerned that someone was in possession of pornography from his own computer. Staff Inspector Bruce Smollet wrote to the grievor on 31 August 2004, advising him of the disposition of his complaints. The portion of the letter dealing with child pornography is set out below. The second matter in your complaint was that members of the Ontario Ministry of Natural Resources and consultants hired by the Ministry were in possession of child pornography. Detective Constable Menard contacted the Ministry of Natural Resources and obtained a copy of their report of the investigation in your Internet activities. This report contained thousands of images and of those images, only three were questionably child pornography. Detective Constable Menard seized those questionable images. The Ministry of Natural Resources and their consultants came into possession of these images during the course of an internal investigation into your Internet activities. The Ministry of Natural Resources consulted the Ontario Provincial Police Project ?P? during their investigation. There was no criminal intent on the part of the staff members of the Ministry of Natural Resources or their consultants and no grounds to lay criminal charges in this matter. These few images were subsequently destroyed?. In September of 2003, seeking counselling for his behaviour, the grievor ultimately became a patient of Dr. Sheila Clyne, a Registered Psychologist working in Windsor, with whom he worked from that time through October 2004, at which point he moved yet again, to a city where 6 the distance made it impossible to continue any therapeutic relationship with her. In her work with the grievor, Dr. Clyne uncovered the fact that he himself had been sexually abused by a family member as a child, and this, together with the stresses of undercover work and the breakdown of the grievor?s marriage, led her to conclude that the grievor had had a predisposition to offend in the way he did ? that is, by heavy use of pornography, including teen 6 The grievor had two follow-up sessions with Dr. Clyne, one in January and one in February, after he moved. 23 and child pornography, and by sexually assaulting children. Dr. Clyne?s evidence and the grievor?s are set out in some detail in the next section. On 8 December 2003, the grievor ultimately pled guilty to one count of sexual assault on a minor, three of the other charges having been withdrawn on 16 April 2003 and the remaining two withdrawn on 8 December 2003. The victim involved in the charge to which the grievor pled guilty had been nine years old when the assaults began and eleven when they ended. According to the grievor?s testimony at the arbitration hearing, assaults took place on six occasions. Dr. Clyne had provided a written report to the court and also testified at the grievor?s sentencing hearing, on 9 June 2004. The presiding judge was impressed with a number of mitigating circumstances in the grievor?s case, namely that: he was a first offender; he had the support of his mother and father; Dr. Clyne had provided insight into the factors contributing to the grievor?s behaviour, and was providing continuing therapy to try to prevent its recurrence; the grievor had a long, unblemished work record and an excellent work ethic; his marriage had broken down; he had pleaded guilty to sexual assault on a minor, thus foreclosing the need for testimony by any alleged victim; he had been dismissed from his employment; he had turned himself in; his behaviour had already subjected him to ?moral and community outrage?. As a result of these factors, the judge took what he described as the unusual step (that is, unusual in a case of sexual assault on a minor) of not committing the grievor to serve time in a penitentiary. Instead, the grievor was sentenced to a nine-month, conditional term ? in effect, house arrest, to be served at his parents? house ? followed by two years of probation. Justice Mackinnon?s comments with respect to sentence are interesting to note. There is no jail, it seems to me, or other sentence that I can craft that will come close to imposing on [the grievor] a punishment which he is not already experiencing and which he has not already drawn on himself, including the difficulty with his employment 24 termination, the separation from his wife and the estrangement from his children, the moral and community revulsion that attaches to him and all persons who admit to or are convicted of such grievous and deviant and sexual behaviour. It is mitigating that the preliminary hearing was waived and that there was a plea of guilty prior to trial, thereby eliminating any necessity whatsoever for the victim to be required to testify in court. He turned himself in on being contacted by the police. He?s engaged in a course of counselling. He?s kept it up. After a great deal of thought, I?m satisfied, albeit barely, that this is one of those rare cases where the appropriate balancing of the disparate sentencing principles results in a conditional sentence of imprisonment?. Justice Mackinnon ordered the grievor to surrender a DNA sample and also attached a number of conditions to the nine-month conditional sentence. These included, in addition to not leaving his residence except for certain specified reasons, that he was not to be alone anywhere without an adult person present in the company of any person under the age of 16 years, that he was not to use a computer system for the purpose of communicating with a person under the age of 14 7 years, and that he was not to have any contactwith the victim, her sister, or their parents. Since March of 2002, the grievor?s ex-wife had had sole custody of their two children. The grievor testified that, at some point early in 2004, pursuant to a Family-Court order, it was decided that he could have supervised visits with his children once per month, starting after his sentencing. Because his ex-wife refused to bring the children to the access centre, however, the grievor sought and received an order from Family Court, and the visits started in December 2004. In the spring of 2006, visits were increased to one every three weeks. The grievor testified that he had filed an application for unsupervised visits with the Family Court and that that request was being reviewed by the Office of the Children?s Lawyer. After his discharge from the Ministry of Natural Resources, the grievor subsequently found work at a greenhouse. He was terminated from that job in February or March of 2004 but then was hired at a meat-packing company in December 2004, where he was still employed as at the last day of the hearing, 25 June 2007. 7 This person had been his girlfriend and fiancée. 25 Evidence Relating to the Grievor?s Psychological State In view of the fact that the grievor?s work with Dr. Clyne is, in effect, his principal line of defence in this arbitration, this part of the evidence is considered here in greater detail than it was above. A key element in the hypothesis Dr. Clyne ultimately fashioned was the grievor?s recollection in late 2003 and early 2004 that he himself had been sexually abused as a child by a family member. In order to give a more detailed sense of Dr. Clyne?s diagnosis and understanding of the grievor, certain key extracts of two documents she authored as well as extensive parts of her testimony are set out directly. In May of 2004, Dr. Clyne provided a ?Psychological Assessment Report? for the court in respect of the grievor?s criminal trial. The section on ?Therapy Progress? is set out below in its entirety. [The grievor] initiated counselling on September 9, 2003 and continues to attend on a weekly basis. Presenting problems involved sexual abuse of a minor. In his therapeutic efforts the grievor has uncovered a background of childhood physical and sexual abuse perpetrated by a close family member. This occurred at a young age when his personality was forming and has resulted in a state of repression and dissociation of memories surrounding the events. [The grievor] has worked very hard to uncover the memories but has yet to begin the hard work of resolving the issues arising from the events. [The grievor] has been attending counselling on a regular basis and appears committed to the task of resolving the forces which led to his current legal charges. He appears to be sincere in his approach to therapy and has developed an attitude of determination to work through the factors which gave rise to his current difficulties. He has expressed remorse for his actions and appears to recognize the harm that he has caused to an innocent child. If [the grievor] completes the full course of treatment the chances of his reoffending are significantly lessened. [The grievor] has struggled with the issues which brought him into therapy and works hard to appreciate the effects of his actions. His communications within the therapy situation have been open and forthright. He appears to recognize the inappropriateness of his actions. He further recognizes that he experiences difficulty with adult relationships and is attempting to remediate this problem. Intense stress appears to be one of the factors which is likely to bring out the dynamics of past abuse. In [the grievor?s] case this involved the breakdown of his marriage and working under cover with little support. Psychological literature evaluating the effects of engaging in undercover work, especially as an operative agent, identifies accentuation of pre-existing agent vulnerabilities, identity strain arising from prolonged ?role playing?, sympathy for the views of the targeted criminal and corrosion of the agent?s value system. Sleep disturbance, anxiety, loneliness and isolation, and memory and concentration difficulties were also noted as well as unusual feelings of paranoia and a strange sense of experiencing the self as ?unreal?. The 26 longer the period of time during which the individual engaged in undercover work the more severe the difficulties encountered. [The grievor] was intermittently engaged in such work over a period of 12 years. Dr. Clyne?s ?Summary and Recommendations? are set out below. [The grievor entered psychotherapy after he was accused of molesting a child. His work has focussed around his developing an understanding of his actions and ensuring that he will not ever reoffend. He has attended regularly and worked to uncover dynamics which have played a part in his current dilemma. He has developed an understanding of factors which resulted in his current status, including: Childhood sexual assault by a close family member Working for 12 years in various undercover operations Unsuccessful marital relationship [The grievor] now recognizes the effect of his childhood experiences upon his adult behaviour. Childhood sexual assault is one of a number of factors which predispose adults to recreate the situation by, in turn, assaulting children. Covert work has been implicated in the literature to result in corrosion of the agent?s value system, thus, allowing the tendencies from childhood to become active. Finally the loss of his marital relationship is likely to have provided the privacy and opportunity for him to carry out the impulses that had become intense. [The grievor] should continue with this psychotherapeutic work to completion. While he has made significant progress in uncovering events in his past he still has much work to complete. Completion of this work will lessen his future impulses to re-offend. [The grievor] should guard against future employment with any agency which would require or utilize undercover operations as part of its mandate. [The grievor] has already exhibited symptoms of emotional/psychological harm arising from long term work in this area. Avoidance of this kind of situation will lessen the chances of his reoffending. The following is taken from a letter, dated 21 November 2004, from Dr. Clyne to Mr. Leeb, the Union counsel in this arbitration. ?[The grievor] has aspects of a personality disorder which results in his being very self- focused and having difficulty understanding the effects of his actions on others. He further has an elevated trauma level suggesting that he has been subjected to events to which he responded with fear, helplessness and/or horror. Both of these psychological findings are consistent with the childhood abuse which he has reported during his psychotherapeutic work. His work as an undercover operative is likely to have severely exacerbated an already preexisting condition. As such he is considered to be disabled in relation to his ability to pursue ongoing work which requires deception and secrecy and which may result in increased levels of anxiety and emotional distress. It is unlikely that he will ever be able to engage safely in work of such a nature again. [The grievor] would be ill advised to attempt to resume his employment as an undercover operative. The stress involved with that work and the clandestine nature of his actions are likely to again adversely affect his emotional status producing a risk of future relapse. 27 I am unable to predict the future in terms of [the grievor?s] improper use of government computers. I can however indicate that if [the grievor] is placed under significant stress the possibility of relapse is increased significantly. The following points are quoted directly from Dr. Clyne?s evidence before this board. 1.He has aspects of a personality disturbance, arising out of sexual abuse as a child. Very focused on himself and his own needs. Didn?t appreciate effect of his actions on others. As a result of his own abuse, had none of the normal boundaries in day-to- day interactions with others. 2.At beginning of therapy, in September of 2003, he was completely unaware of having been abused. It was through his work with me that he uncovered knowledge of a family member who had abused [him] as a child. 3.[Explaining why he committed sexual assault on a minor] There were three factors involved. The first and primary one was his own sexual abuse as a child, which laid the foundation of desire and lack of boundaries. The second was the dissolution of his marriage, which left him the privacy and opportunity for this to occur, and also left him questioning and doubtful of his own competencies as an adult and human being. The third factor was his work with MNR. 4.[Elaborating on the influence of his work] There was the stress of the [large] amount of work ? he was busy; he had a lot of responsibility. It took him away from home; it probably drained his personal resources. He was involved, to some extent, in covert operations. 5.[Explaining the influence of being on covert operations] Two factors [associated with covert operations] that have been identified as affecting those involved in covert operations are (1) erosion of the agent?s personal morals [when they?re involved with criminal activity] and (2) accentuation of a pre-existing agent vulnerability. 6.[Asked about the grievor?s visiting first pornographic, then teen pornographic, and then child pornographic sites] I considered this a symptom of an underlying disorder. That?s particularly the case when there?s teenage and child pornography. 7.[In response to the question, ?How often have you experienced adults abused as children having reported using child pornography??] Commonly. And conversely, when people say they?re involved with child pornography, I frequently question the possibility of child abuse with that person. 8.[In response to the question, how do you explain him looking at this (pointing to a specific list of web sites featuring a variety of different kinds of pornography ? in evidence (Exhibit 4). It?s a symptom of an underlying disorder, one initiated by his own childhood sexual abuse, giving rise to desires and impulses shown very explicitly in this pornography. 9.[In response to a question as to what, in her opinion, explained the grievor?s looking at such sites] Again, it?s the three factors: (1) his own sexual assault as a child gives rise to desires and impulses re children; (2) his marriage dissolution, undermining his self-confidence; and (3) his work situation [undercover work], which eroded his value system. 10.[In response to the question as to whether or not the grievor knew that viewing such graphic web sites was wrong] Morally wrong? No. He knew it was against the rules. 28 11.[In response to a question as to why, knowing it was against the rules, the grievor would still access such sites] He has distorted thinking. His trust was violated when he was young. It was an experience he repressed, dissociated from memory. In order to do that, he developed distorted thinking. 12.[In response to a question as to why the grievor?s distorted thinking affected his following the rules] His trust was betrayed by an authority figure. Distorted thinking involves rebellion against rules and authority. His distorted thinking involves rebellion against rules and authority. The boss is an authority figure; if he says you can?t do something, you figure out a way around it ? at least at that time. His [the grievor?s] needs come first. 13.[In response to a question as to how this all ties in] It all ties back in to abuse as a child. Because his trust was betrayed by an authority figure?.Because of his own abuse, he became oppositional to authority figures. Abused children become angry. Opposition is how he expressed his anger. 14.[In response to a question as to where the grievor?s needs come in] His opposition takes the form of his needs coming first. Pornography is the obvious example. 15.[In response to a clarifying question, is the ?need? to oppose what the boss says?] No; the needs are sexual?the ?oppositionality? is a personality characteristic of [the griever]. 16.[In response to the clarifying question, ?so it?s a case of ?forget what the boss says; his sexual needs come first?? ?] Basically, yes. 17.[In response to the question in cross examination, ?Did you ever indicate in your notes that he internalized anything?] No. Just that he was struggling. According to Dr. Clyne, the grievor?s role in undercover work was an important factor in what she described as his vulnerability to the temptations of pornography, including teen and child pornography, and of sexually assaulting a minor himself. In this regard, Dr. Clyne drew heavily on the work of Dr. Michel Girodo of Ottawa University?s School of Psychology, who has researched, written, and taught on the subject of undercover work and its psychological dangers. Dr. Girodo writes about four factors associated with undercover work that tend to induce corrupt behaviour: a preexisting vulnerability, identity strain, developing sympathy for the criminal?s view, and corrosion of the agent?s value system. Dr. Clyne found that the first and fourth of these factors applied to the grievor. Asked about the grievor?s saying to Grace Shore that ?I was a single male who has surfed the Internet for pornography? (Exhibit106), Dr. Clyne replied that this was a perfect example of the grievor?s distorted thinking, itself a symptom of an underlying psychological disorder, nota healthy male sexuality. 29 The grievor confronted his abuser, which, according to Dr. Clyne, was a psychological breakthrough for him. (Both Dr. Clyne and the grievor testified to this point.) According to the grievor, he filed a complaint with the police, who investigated and ultimately laid charges. However, his uncle passed away, thus foreclosing the case being brought to finality. When asked by the grievor?s counsel about the impact of her work, including the confronting of his abuser and the likelihood of his using computer pornography or engaging in molestation in the future (163), she responded that he?s gone through enough that he has strong reasons not to?[he understands that there are] consequences for actions? he?s unlikely to do it again?. The point of therapy is to reduce the chances he?ll do any of these things [pornography and sexual molestation] again. His ability to rationalize the usage of pornography has lessened as a result of therapy. And close to the end of her cross examination, after explaining that the grievor knew at the time that his child molesting was wrong morally as well as legally but that he didn?t know why he did it, she was asked by counsel for the Ministry about the grievor?s understanding and beliefs in that respect ?now? ? that is to say, in December 2005. Her answer was as follows: Through the work done in therapy, his value system is more conventional. He is less oppositional to authority, beginning to recognize the need for boundaries and his need to respect them. 202-03 Having said all of that, he still had a long way to go at the time he left my practice [October 2004]. Towards the end of her testimony, Dr. Clyne said that she had advised the grievor that, in view of the fact that he was stopping his work with her (by virtue of moving to another city), she thought he should continue with one-on-one counselling. At the very end of the cross examination, Dr. Clyne was asked if she was aware that, in respect of the legal difficulties the grievor was having, there was more than one minor involved. She answered that she was not, that the grievor had told her of only one. Evidence with Respect to the Criminal Intelligence Service of Ontario The Evaluation and Special Services Unit comes under the Enforcement Branch of the Ministry of Natural Resources. Members of the Enforcement Branch are considered ?peace officers? or ?law-enforcement officers? and work with officers of other law-enforcement agencies on an as- 30 required, project basis. ESSU is also part of the Criminal Intelligence Service of Ontario (CISO), a provincial organization whose principal purpose is the sharing and dissemination of intelligence on ?organized crime? ? a sort of ?clearing house? for intelligence on organized 8 crime, in the words of its Director, OPP Superintendent Allan Bush, who testified at the hearing. The Ministry of Natural Resources is a ?Level One? member of CISO and, as such, has the highest level of access to the intelligence provided through its services. Testimony was heard from Superintendent Bush with respect to the workings of the Service and, specifically, the impact on its members of having an officer in one of its constituent services convicted of a criminal act. His answer was that any finding of criminal activity by a member of a constituent unit of CISO would be of concern. As Director, he would want to be informed about it by that officer?s unit, and if he felt it was serious enough, CISO would investigate to determine the extent to which such criminal activity might affect the reliability and dependability of that unit?s intelligence and the other constituent members? perceptions of the unit?s reliability and security. It was impossible to draw any conclusion here as to how CISO might have responded to the grievor?s criminal actions. What was clear, however, was that CISO is, in a sense, a sort of institutionalized embodiment of a defining quality of ESSU: that, by virtue of the nature of its work and mandate, it is tied into other law-enforcement agencies, with which it formally shares information; it is part of a network of law-enforcement organizations, across different municipal, provincial, state, and federal jurisdictions with which it works more closely than other, non-law- enforcement organizations tend to do with each other. The Grievor?s Evidence The grievor testified at length about the covert investigations in which he had been involved during the period 1990 through 2000, and submitted a list of these, which was entered in 9 evidence as Exhibit 118. These investigations, numbering 31 over ten years and lasting anywhere between two weeks and two years, generally looked into the illegal taking and/or selling of fish and game and varied in character from simply entering restaurants in civilian 8 ?Organized Crime? is defined as ?three or more persons joining together in criminal activity?? and, thus, would include violations of the natural resources law (for example, people illegally taking and selling fish and game) as well as the activities civilians tend to associate with the term ?organized crime?. 9 There was one two-month investigation in 1990. 31 clothes to order a meal to static or mobile surveillance in the field; several were characterized by the grievor as ?intelligence probes?, involving higher risk. Starting in 1998, when the grievor joined the Evaluation and Special Services Unit, his involvement in these investigations became that of ?project coordinator or leader?. He testified that supervising field operations ? handling agents ? could be extremely stressful by virtue of concern over their safety and the security of the operation. As noted, the grievor testified, as did Dr. Clyne, that he had been sexually assaulted as a child by an uncle with whom he was visiting during the summer when he was 11 years old. This started with fondling and escalated over subsequent visits to much more serious forms, including oral and anal sex. After the second incident of the latter, the grievor testified, he left and never came back. He testified that he had been threatened by his uncle that he should ?never tell anyone?. The first person he told was Dr. Clyne, in the context of their therapy sessions. As noted earlier, after the memory of all of this came out in Dr. Clyne?s counselling sessions in late 2003 and early 2004, the grievor ultimately confronted his uncle in May of 2005, the police contacted him, investigated, and filed charges, but the uncle died before the case could be brought to a conclusion. The assaults to which the grievor pleaded guilty took place over a three-year period, from January 1997 to December of 1999; at the outset, the victim was 9 years old, and she was 11 at the time of the last assault. The assaults took place in the grievor?s house when the victim and her sister were ?sleeping over? with the grievor?s children, and took the form of fondling in the breast and vaginal areas. The grievor testified that this happened six times over that period and that he stopped of his own volition and not because of disclosure by the victim. The grievor also admitted that he had used his Ministry computer to communicate with his victim. As noted, the grievor was given a nine-month conditional sentence that amounted to house arrest, and placed on probation for two years, that probation having ended in March of 2007. He testified that none of the conditions attached to his sentence or his probationary period would have interfered with his ability to work for the provincial government ? except that the sentence presumably would have meant that he would have to work remotely. 32 The grievor testified that several supervisors and managers, Mike Kindree and Allan Sullivan, and one information-technology specialist, Bob Halsey, were aware that he had installed personal chat lines on his computer; indeed, he testified that he first got the idea of a personal chat line from seeing other IT staff using them. The grievor related an incident where he and Allan Sullivan and Mike Morencie, manager of the ESSU until May of 2001, were in the grievor?s room while attending a conference at the Trillium Conference Centre near Sudbury. According to the grievor, his computer ?binged?; Mr. Sullivan asked him what it indicated, to which the grievor replied that it was his chat line and someone wanted to chat. On another occasion, while examining the grievor?s Ministry computer for some problem, Mr. Halsey had observed that the chat lines weren?t ?templated to government standards?, but he did not advise the grievor that it was in any way inappropriate to have them on his computer. The grievor testified that it was only when he was away from the office and not on ?Ministry time? that he surfed pornography; in addition, he used his own Internet Service Provider for this purpose. While he candidly admitted that he had used pornography since he was a child, in the form of books, magazines, and videos, the Internet opened up a whole new venue with vast possibilities in terms of variety and amount. The grievor testified that he started surfing for pornography in 1997, after his marriage broke up, and continued until his arrest in April 2002. The grievor testified that he never downloaded and saved pornography, that he simply looked at it. Asked by Union counsel for his view of this practice at the time, the grievor responded, ?I?m using my own Internet service provider ? I?m just a guy surfing porn.? Then, asked by counsel what he thought (at the time) about viewing pornography involving children, the grievor responded, ?At that time, I was looking at any kind of porn ? there was no distinction.? Asked what he thought ?now? (that is, a day of the hearing, in December 2006), the grievor responded, ?I find it very hard to look at them. In those pictures, children are being hurt, and I further victimized them by going out and looking at them.? Asked what the grievor now thought about looking at pornography on a government computer, he responded, ?It?s easy to say today it?s just not acceptable. It?s wrong of anyone to do it.? Asked then, ?why do you say that?, he replied, ?If I compare myself today to where I was back then, prior to counselling, and having had the opportunity to reflect back and read, I used a piece of equipment for a purpose for which it wasn?t provided.? 33 The grievor testified that he has his own computer today, and in response to the question, ?What are your surfing habits today?? (that is, December 2006), he said, ?I just don?t surf for it ? not in news groups, not in Explorer?. He stopped, he said, after his arrest. The grievor testified, contrary to what Ed Vervoort had testified that he had said on May 9, while standing outside his house while the South Simcoe Police Service searched it, that while he had indeed expressed surprise that the police had taken so long to search his house, he had actually then said, ?I could have deleted material from my computers?. He also testified that he had not, in fact, deleted anything. He testified that he voluntarily gave all of his passwords because he wanted to cooperate. ?It?s in my nature. I wanted to show I had nothing to hide, to make their [the police?s] life easier.? The grievor testified that when he was called on 10 March 2003 to the disciplinary meeting on 13 March 2003, he was, in fact, surprised, because he had received a further 20-day suspension with pay the same day. But he said that he was also worried, expecting that he might receive a suspension without pay. When advised that he was being terminated, the grievor testified, he was shocked ? he was a long-standing civil servant, the criminal charges had not yet been disposed of, and he was simply not expecting to be terminated. Counsel for Union took the grievor through the termination letter and asked him to comment on each of the three grounds for discharge. With respect to the inappropriate use of information technology, the grievor admitted that, at the time and in some sense, he felt that he wasn?t really doing anything wrong, given that both IT staff and his own supervisors and managers knew about ? and had not objected to ? his chat lines. [I know now] it certainly wasn?t right. Regardless of who may have given me implicit approval, it wasn?t right. It was my own stuff; it?s not what it [the equipment] was intended for. Asked by counsel of his view of his having accessed pornographic web sites with a Ministry computer, the grievor responded, During that time period, yes, I accessed inappropriate sites. That was certainly part of my psychological issues. It was wrong to do that. Just because it was my own Internet provider didn?t make it okay. Those particular sites are ? I shouldn?t have been accessing and?I don?t access any more. 34 With respect to sexual assault, the grievor responded, It was certainly not right. At the time of the offence, there were a lot of factors as to why?I didn?t understand at the time, but certainly understand today. My conduct was harmful ? to a lot of people. Asked by counsel if it was harmful to the Ministry, the grievor answered, Including the Ministry. Certainly, what I?ve done in life, both good and bad, reflects on the Ministry. My conduct embarrassed them. Asked by counsel for the Union why he was pursuing the grievance, he responded as follows. I made a decision back in 1981 to pursue a position in government. I stayed that course because I enjoy working. It?s what I know. I?m a civil servant. I?ve put in 22 years ? and I?m proud of those years. I worked hard for my bosses. I made a big mistake. There are others out there who gave me a second chance. I can?t change the past, but I can certainly control the future. I feel I deserve a second chance here, too. When I look back at what Justice Mackinnon [in the criminal trial] did for me ? he gave me a second chance in life. The family court judge gave me a second chance with my children. This is what I know and love, so yes, this is a second chance. I?ve worked very hard on myself over the last couple of years ? I?m hoping that you [that is, the Vice Chair] can see this. Certainly everyone who is watching over me has seen the changes ? people like my probation officer, Dr. Clyne. People make mistakes, and I made a very terrible mistake. I didn?t understand. But that type of behaviour is not me today. As noted earlier, the grievor ultimately linked up with Dr. Clyne, whose practice is located in Windsor, because he was by that point living with his parents in a nearby city. He had identified her as someone who might be able to help him through Dr. Girodo, who suggested that he contact the Toronto Police Service EAP, which ultimately put him in touch with Dr. Clyne. He started seeing her in September of 2003 but, after he moved in November of 2004, he had to make other arrangements closer to his new home. In March of 2005, through his probation officer, he found a local program called ?Revive?, which is designed for two groups ? sexual offenders and sexual victims ? and involves group therapy; the sessions are run by two co- facilitators, whom the grievor described as trained in facilitation but not psychologists. The grievor participates in a ?Speakers Bureau?, through which he speaks to various groups ? for 35 example, facilitators, victims, probation officers, and students ? about his offence. He also participates in charitable activities. The grievor testified in-chief that he had wanted to be open at the February 25 disciplinary meeting and talk about mitigating circumstances. He was pressed on this during his cross examination, particularly with respect to the specific mitigating circumstances he wanted to talk about but couldn?t by virtue of the fact that Greg Sones and Mike Kindree were both peace officers and so, he believed, would have had a legal obligation to pass on any information to the Crown. He responded that they related to ?psychological issues?, that they were work-related. On the other hand, he also said that, in February of 2003, he couldn?t define what they were because he hadn?t yet found a counsellor to deal with them. Asked by counsel for the Ministry how, then, he knew they were psychological, he responded, ?I couldn?t define what they were because I hadn?t found a counsellor to deal with them.? Asked then how he knew they were psychological in character, the grievor responded that I knew I had hurt someone. That itself tells you there?s a psychological basis. That type of offence has a psychological basis to it that has to be determined?. There was also a period in my life I had no knowledge of ? I called it the ?black period? ? that, at that time, I thought was related to those psychological issues. That period I?d started to work on, but hadn?t gotten very far. Asked by Ministry counsel what work-related issues he was referring to, the grievor replied that ?my concern was what impact covert work had on my ability to recognize that I?d crossed the grey line.? Q: Was there anything else you were afraid to convey in February 2003? A: I?m not sure. I was facing so many things at that point. My main concern was that you would only get half a story. The grievor was asked about his e-mail of 15 March 2002 (Exhibit 126, referred to supra, at p. 11) and confirmed that he had sent it from his home computer to his 15-year-old fiancée, the older sister of the victim of the assaults to which he pled guilty.At the request of counsel for the Union, the grievor read this e-mail out loud at the hearing. He testified that he had called himself a ?sad, sad person? because that?s exactly the way he felt about himself at the time. The grievor confirmed that it was this e-mail that was referred to in the Report of the Office of the Children?s Lawyer. The grievor said he sent the e-mail because he knew that everything was going to come 36 out, that the matter was going to end up in the hands of the police: the victim had e-mailed the grievor on several occasions, threatening to go to the police if he did not break off his relationship with her sister, and he had heard from someone else, whom he described as a friend of the family, who had told him, ?that?s [that is, the police] where it?s going to go?. It was after this that the grievor took the initiative and contacted the South Simcoe Police Service. The text of this e-mail is set out below. The decision to include the actual text of this e-mail in this award was made after much careful consideration. I decided to do so because it casts light on the grievor?s state of mind in March 2002, the reason he turned himself in to the police, the nature of his chat-line communications, and the nature of his relationship with his 15-year old girlfriend/fiancée. Importantly, too, it corroborates the accuracy of the statement in the Report of the Office of the Children?s Lawyer on which the Ministry partially relied in coming to the decision in March 2003: that the grievor was, in fact, guilty of sexually assaulting or interfering with least one of the alleged victims in the criminal charges, or both. Finally, it is capable of various interpretations, in the context of this overall situation. From: ?the dreamer? [e-mail address] To: [deleted] Date: Fri, 15 Mar 2002. 13:28:54 Ok, im not doing ok?..im gonna tell u sumting and its not good?I havent told naybudy 10 b4 and well I have never known wut to do bout it??im not a good person [deleted] ?..in fact im a very bad person. I got problems I don?t know how to deal wit?ur da only person im gonna tell and im gonna lose u over this its ok?I don?t deserve u and I don?t deserve anybody in life k?I just don?t?I got problems that run so fuckin deep I don?t even know where to start?.i have never dealt wit them and I shud have man I know I shud have an I dont even know how?.cuz im fuckn scared to death?..im a sad sad person k ?a fuckin sad person?.fuckn sad?I used to be a real good person and then my life fell apart and I just keep fuckn up?all da time?[deleted]?.when u guys used to come visit?.i touched [deleted] in ways I never shud have?ever ever ever shud have?.im nothing but fuckn dirt ok?.im an asshole?im a jerk?and i got problems?.at least I did have them?since u been in my life im fine but I got problems?.so u understand wut im fuckn sayn?.i molested your fuckn [deleted] ok?.I a god damn jerk?im everything ppl hate and I dont blame them?but I did it..i touched her and I never shud have and fuck?.i hate fuckn life?I just want out of this whole fuckn life k?.iw anted u in my life and that?s all and then move on?I did sumting wrong [deleted] and I shud pay for it?I shud go to jail and pay for it cuz it was fuckn wrong?so fuckn wrong?.WRONG WRONG WRONG WRONG WRONG FUCKN WRONG?now I have u and im gonna loose u cuz [deleted] in now hanging it over my head?leave u alone or she will press charges?and i don?t blame her ok?but if i don?t 10 In the copy provided to the Arbitrator, some words were stroked out by hand, and these are indicated in this reproduction by the designation ?[deleted]?. 37 leave this alone she will and i will loose u forever?i probably gonna anyway?.tell her im really sorry?.im really sorry?ig2g?.........im sorry [deleted] i luv u so much but maybe u wud be better wit sumbudy else?ig2g?.bye sweetie. The Evidence of Supervisors and Managers of the ESSU Mike Morencie became manager of the Evaluation and Special Services Unit in 1996 and continued in that capacity until May 2001. He hired the grievor into the ESSU in 1998 as an Intelligence and Investigation Officer in Fish and Wildlife in the Central Region, whose principal job was to plan and manage investigators. He testified that he did not recall the grievor working undercover while in ESSU but that, prior to 1998, he had participated as an undercover operative in two operations, neither being considered high-risk. He agreed that the grievor had participated in surveillance work, but that was not considered ?undercover? nor was it as risky as true undercover work. Mr. Morencie also testified that he did not recall the ?Trillium Centre conference? incident (April 2001) in the grievor?s hotel room, where he and Al Sullivan discussed with the grievor the fact that he had personal chat lines. Allan Sullivan was acting supervisor of the Evaluation and Special Services Unit from May 2001 to 2005. It?s clear that Sullivan knew the grievor was using chat lines and, indeed, agreed it was a good way of keeping in touch with friends and family when one was on the road a lot. He admits he never ordered the grievor to shut down his chat lines. Mike Kindree has been Manager of the Intelligence and Investigation Section, Enforcement Branch, Ministry of Natural Resources, since May 2001 but was away on sabbatical from January to December 2002. During 2001, he was manager of the ESSU, with Allan Sullivan reporting to him as supervisor; thus, the grievor indirectly reported to Mr. Kindree. Mr. Kindree said that the grievor was not directly involved in any undercover activity in 2001. His evidence in this regard was unshaken in close cross-examination. Mr. Kindree also testified that, in May of 2001, he met with the grievor to counsel him with respect to proper and improper use of Ministry IT resources in respect of the large-scale investigation that had just concluded (Computergate). It should be noted that the grievor?s involvement was minor and that he appears not to have received a warning letter. Nonetheless, it 38 is clear that he was spoken to by Mr. Kindree, and a written record of his verbal warning was entered into evidence. Evidence with Respect to What the Grievor Said on 9 May 2002 As noted, Ed Vervoort , Manager of ESSU, testified that, on 9 May 2002, as the South Simcoe Police were searching his house, the grievor had said to him and Allan Sullivan something to the effect that he was surprised at how long the police had taken to search the house and that he had had ample time to cleanse his computer. The grievor denied this. The final edition of the Grace Shore Investigation Report relates the following. The respondent was asked to recall a meeting at his residence on May 9, 2002 to discuss his leave of absence request and the retrieval of items that belonged to MNR. The respondent recalled the meeting. He was asked if he had told Witness A and Witness B that he had ?dumped? information from the laptop computer a long time ago and how stupid did they [police] think he was. The respondent replied, ?No, I don?t recall saying that. No, I don?t recall ever saying that. [The] only conversation [I had] with Ed Vervoort [was to the effect] that I didn?t think there would be any concern about what was on the MNR computer.? Later in the report, Ms. Shore made the following statement. Witness A advised the investigator that the respondent had told both himself and Witness B, that he had deleted or removed data from his laptop computer at the May 9, 2002 meeting at the respondent?s residence. The respondent said to Witness A (paraphrased by Witness A) ? ?I don?t know what they are hoping to find and why they waited so long. How stupid do they think I am. I got rid of stuff a long time ago? ?. Witness B recalls the respondent saying, ?I expected them a long time ago with these types of charges. Do they think I?m stupid, my e-mail was dumped a long time ago. There was nothing on my work computer, that?s why I have a personal computer at home.? These events, then, are what gave rise to this arbitration, which started on 15 April 2005 and had its final day of hearing on 25 June 2007, with written reply submissions following in August. By way of remedy, the Union is seeking reinstatement, albeit not necessarily to the date of discharge (this will be discussed in more detail later in this award). The Ministry seeks dismissal of the grievance or, in the event that I allow the grievance, that the grievor be awarded monetary damages rather than reinstatement, given that, in its view, the employment relationship has been irreparably breached. 39 A RGUMENTS The Ministry?s Argument The Employer?s position is that the grievor was discharged for two sets of reasons. First, were he to be found guilty of any of the criminal charges of sexual assault and sexual interference with respect to minors, continuing to employ him would have brought the Ministry into disrepute both publicly and in the law-enforcement community. As well, the grievor would have fatally breached any trust the Employer could have in him, and compromised both his ability to act in the capacity of a peace officer and the ESSU?s ability to work with other law-enforcement agencies. Second, his use of a Ministry computer for purposes of pornography, including child pornography, was a blatant violation of the very well known WDHP policy forbidding such use. The evidence with respect to computer pornography was clear, in the form of the reports by the OCFS and Ms. Shore. Indeed, the selection of pornographic sites actually reviewed by Ms. Shore was only a small sample of the total sites visited. Further, there was some evidence, which the grievor disputed, that in the interval between the laying of criminal charges on 2 April 2002 and the police search of his home on May 9, he had deleted material from his computer. In other words, the actual evidence of pornography reviewed by the Ministry reflected only a small portion of the total number of pornographic sites visited, and if the grievor actually did erase any material, the proportion was even smaller. Indeed, it must be said that the grievor did not really dispute the assertion that he made heavy use of computer pornography, including teen and child pornography. In the matter of the criminal charges of sexual assault and sexual interference on a minor, while the Grace Shore report was essentially silent on this ?track? of the investigation, that was because the grievor refused to answer any questions in respect to it, on the basis of his criminal counsel?s advice. Notwithstanding the silence of the investigation report, however, Greg Sones concluded that the grievor was guilty of at least one of the charges, basing this conclusion on two e-mails sent by the grievor, one to his fellow Conservation Officers on 2 April 2002 and the e- mail referred to in the Report of the Office of the Children?s Lawyer (Exhibit 126), which, it will be remembered, the Ministry did not receive until December 2006. 40 The first e-mail (repeated here for ease of reference), Mr. Sones read as a de facto admission of guilt and a statement of remorse and shame at what the grievor had done. I know that as of late this forum is about the strike and all the issues around it. However, for me, right now this is a minor thing in the bigger issues of life. I am here to apologize to each and every one of you, for when I read what we in the OCOA day we as Conservation Officers are all about?.pride, truth, trust, integrity?etc., I am sorry to say I have let all of you down. When you have problems in your life, be they marriage, medical or psychological, you have to face those problems head on because if you don?t it will only hurt you further in the long run. I did not face the reality of some problems and as a result, I have hurt some people. No amount of apologies can take away the hurt that I did. Nor will it take aware the shame I feel for what I have done. I am sure that some of you think of me as a good Conservation Officer, and I do appreciate that, however an Officer is only as good as the oath that he subscribes to. I am taking a leave of absence to deal with my problems and at this point I do not know if I shall ever return as a Conservation Officer. If I don?t, then I want to thank all the Officers that I have worked with for their support over the years and perhaps someday I will meet you over a fishing hole somewhere. The Report of the Office of the Children?s Lawyer characterized the second e-mail on which the Ministry relied in the following terms: The investigator read the CAS (Children?s Aid Society) files and reviewed an email in which [the grievor] stated that he did molest Y?s younger sister, X, that he was sorry, and that he was sick and needed help. Thus, counsel for the Ministry argued, by late February the employer could be confident that the grievor was guilty of sexual assault on at least one minor and it knew with absolute certainty about his use of a Ministry computer for purposes of viewing of a large quantity and wide variety of pornography, including child pornography. It advised the grievor of these conclusions in the letter of 18 February 2003 and gave him an opportunity to address them at the disciplinary meeting of February 25. The grievor refused to provide any reasons whatsoever by way of mitigation, explaining that his criminal lawyer had ordered him not to do so. The Ministry then allowed him another three days to discuss the situation with his criminal counsel to see if anything could be offered; nothing was. Counsel for the Ministry argued that, in fact, there was nothing that could have been offered in mitigation beyond what was already known, for the simple reason that the grievor?s own sexual assault as a child was not known at that point and in fact did not become known until he was well into his work with Dr. Clyne, many months later. Given all the facts, set in proper context, then, the grievor was accorded procedural fairness. Counsel for the Ministry argued that, as a legal matter, the grievor was not entitled to procedural 41 fairness, given that he was covered by a collective agreement but that, notwithstanding this non- entitlement, he was treated fairly in any event. The Ministry argued that the grievor?s actions in obtaining a sealing order on the family-law file suggested a self-serving motive ? namely, to frustrate the Ministry?s investigation and prevent it from using the contents of the Report of the Office of the Children?s Lawyer. It also characterized the grievor?s attempts to have Ms. Shore, Mr. Sones, the Deputy Minister, and another MNR employee charged with possession of child pornography in the summer of 2003, after his termination, as vindictive and cited this as further evidence of the fact that the employment relationship was irretrievably broken and that I should not reinstate the grievor in the event that I allowed his grievance. Finally, counsel for the Ministry pointed out that Justice Mackinnon had treated the grievor?s loss of his job as a mitigating circumstance that contributed to his decision to impose an conditional sentence (unusual in such situations) in the criminal matter. Using that same factor to reduce the penalty of dismissal from his job would effectively allow the grievor to have benefited in his criminal situation from a circumstance that no longer existed. That is, doing so would be to upset the balance of total justice and allow the grievor to profit from a well-deserved misfortune (his dismissal). The Union?s Argument Mr. Leeb, for the Union, argued that the case could be framed in two ways: non-culpable conduct, in which the Employer might have a duty to accommodate, or culpable conduct, where the issue would be just cause and the force of mitigating factors and a flawed investigation ? and a disruptive process. The Non-Culpable Argument In respect of the non-culpable line of argument, counsel suggested that the evidence justified a finding that the grievor was, in effect, psychologically disabled by virtue of the factors identified in Dr. Clyne?s hypothesis: a predisposition to such behaviour on the basis that he had been sexually abused by a family member when he was a child, which was brought out or precipitated by the stress involved in uncover work and the breakdown of his marriage. Given that disability 42 is one of the prohibited grounds of discrimination under the Human Rights Code, were I to conclude that the grievor had been, in fact, disabled, then the Ministry would have had a duty to accommodate the grievor up to the point of undue hardship. By way of possible accommodation, the Employer should have moved him to an appropriate alternative position somewhere in the Ontario public service. In the event that I were to find that the grievor had been disabled, counsel for the Union asked for damages retroactive to the date of discharge, 13 March 2003. Counsel for the Union also argued that the Ministry cannot argue that it could not have accommodated the grievor by virtue of his having been charged with the criminal offences of sexual assault and sexual interference in view of the fact that ?record of offences? is also a prohibited ground of discrimination under the Human Rights Code. The Culpable-Conduct Argument Counsel for the Union argued that the Ministry?s manner of dealing with the grievor and his misconduct is suggestive of a lack of confidence ? on its own part ? that it genuinely had just cause based on the computer pornography and the criminal charges of sexual assault. While the Ministry admitted that the most serious of the offences was always considered to be the sexual assault and interference, counsel for the Union pointed out that it actually had proof in very early April 2002 that the grievor was guilty, on the basis of his April 2 e-mail and his answer to Mr. Vervoort?s April 1 question as to whether or not any of them might be true ? ?some may be; some aren?t.? The Employer also knew, at least as early as October-November, the nature and extent of the grievor?s use of computer pornography. Why, then (asks the Union), did it wait until 13 March 2003 to act? Counsel suggested that this was a difficult challenge for Mr. Sones as a witness: namely, to satisfactorily explain the long delay in acting. On one hand, the Ministry argued, and Greg Sones and Ed Vervoort both testified, that its formal investigation started out on one track ? computer pornography ? and that a second track was added with the acquisition of the Report of the Office of the Children?s Lawyer, and Grace Shore was directed to follow that second track; thus, the grievor was advised on December 10 that ?new evidence? had been uncovered and that Ms. Shore wanted to interview him again. On the other hand, there is a problem in that Ms. Shore did not mention in her testimony before this board that she even enquired in that direction during her interview with the grievor, nor did her second or third draft 43 reports draw any conclusions with respect to sexual assault or interference. On the basis of these inconsistencies, then, counsel for the Union asked me to conclude that Mr. Sones?s testimony was untruthful, that he had never directed Grace Shore to look into the area of the sexual-assault and sexual-interference charges.In this regard, counsel suggested that Mr. Sones had tried to mislead me in testifying that he had directed Grace Shore to look into this area in order to try to explain why the Ministry didn?t terminate the grievor until 13 March 2003. Because the Ministry knew back in April of 2002 that the grievor was guilty of sexual assault on a minor, it did not have to wait for Grace Shore to enquire into the criminal charges, as, indeed, she did not. Thus, in all of these circumstances, counsel argued, the Ministry?s failure to act until March 13 suggests that they themselves lacked confidence that the criminal charges added up to just cause, and so I should find Mr. Sones?s testimony non-credible. Accordingly, then, both the very long and abruptly ended process and the shaky evidence of the key decision-maker in the termination should lead to doubt as to whether or not that termination was appropriate and for just cause. Counsel for the Union also argued that the very long delay followed by an apparently sudden dismissal is suspect in another respect as well. Citing the Supreme Court of Canada decision in R. v. Teskey [2007] S.C.J. No. 25, where the court allowed an appeal of a conviction for aggravated assault, break and enter, and theft, counsel for the Union suggested an analogous situation here. The trial judge in Teskey, who had given an oral finding of guilt at the end of the trial, then took eleven months to produce the reasons, a delay that the Supreme Court saw as bringing those reasons into question on the basis that there was a reasonable apprehension that they might have been tailored to the guilty finding. The almost year-long delay in deciding to terminate the grievor brought MNR?s decision into question for similar reasons, according to counsel for the Union. As noted above, a good deal of the Union?s argument went to the process through which the grievor was investigated and ultimately discharged. Beyond simply the doubt the process casts on the credibility of the principal decision-maker and Ministry witness, Mr. Sones, and therefore on the presence or absence of just cause, there is an obligation of procedural fairness upon the Employer: it must act with dispatch, advise a grievor of the grounds for possible discipline or discharge, and afford him a proper opportunity to respond. None of this was done in this case, according to counsel for the Union. First of all, the decision-making and investigation processes 44 dragged on for almost a year, from 1 April 2002, to 13 March 2003, even though, as the Union argued, the Ministry had effective evidence of the grievor?s guilt on the sexual-assault and sexual-interference charges from the beginning. Notwithstanding this, after a long and tortuous process, the grievor was invited to a meeting on February 25 for the express purpose of responding to the contents of Ms. Shore?s final report and providing any circumstances or facts that might better explain his conduct, mitigate his culpability, and assist the Ministry in rendering a fair and reasonable quantum and form of discipline. However, the context (of the criminal charges) and the short timeline (three days), did not allow him to do this. At the disciplinary meeting, the grievor again made clear the position that he had taken with Grace Shore all along: that, on advice of his criminal counsel, he could not respond to any questions pertaining to material in the Report of the Office of the Children?s Lawyer or relating in any way to the six criminal charges he was facing. He did say that there were factors, ?psychological factors?, that were relevant to his actions, that he wanted to bring them out and . discuss them, but that he could not do so until the disposition of the criminal mattersHe asked that the disciplinary process be put on hold until that had happened. Greg Sones allowed the grievor just three extra days to consult with his criminal counsel for purposes of revealing relevant facts, but none were forthcoming. Rather than wait and give the grievor an opportunity for a meaningful response, however, Mr. Sones decided to ?charge ahead?, in the words of counsel for the Union, and terminate him. So, notwithstanding the fact that the grievor was trying his best to assist with the investigation but at the same time protect himself in the criminal proceeding, the whole process was brought to an abrupt halt with his termination on March 13, thus denying him procedural fairness. Counsel almost seemed to be suggesting that there was another motive: perhaps they just got tired of having the grievor?s case unresolved. Counsel argued strongly that the grievor has come to recognize the wrongness of what he did and is committed to putting it behind him and ensuring that it never happens again. Counsel asked that the grievor be reinstated, although not in the position of Regional Intelligence Specialist, pursuant to Dr. Clyne?s recommendation, with compensation to run from at least 9 June 2004, the date of his sentencing hearing. 45 The Union?s second line of argument is that there is simply a lack of evidence that continuing to employ the grievor, even if he were to be found guilty of one or more of the criminal charges, would have been detrimental to the reputation of the Ministry or the ESSU. In cases of off-duty misconduct, arbitrators have required clear and cogent evidence of harm to an employer?s reputation, whereas the evidence presented in this case was entirely speculative and/or based on the Employer?s opinion. Counsel for the Union conceded that the grievor?s tone was combative in the exchange of e- mails in the weeks prior to his discharge but argued that it was important to remember that he was in fact correct (in the sense that some of the information in the Report of the Office of the Children?s Lawyer was ruled ?off limits? by the sealing order obtained by the grievor) and that because part of the grievor?s disability was, to use Dr. Clyne?s word, ?oppositionality?, the tone should be excused. The grievor?s approaching of the Metropolitan Toronto Police in August of 2003 can be explained by his concern that the publication ban was being violated by virtue of the Ministry?s still being in possession of the Report of the Office of the Children?s Lawyer and a genuine concern that they also were in possession of child pornography. Counsel argued that this admittedly strange action should be evaluated in context: the grievor?s actions were still being informed by his ?oppositionality?, and he was, legally speaking, correct in both his concerns: there were three child-pornographic images, and the Report of the Office of the Children?s Lawyer contained the names of those children protected under the publication ban associated with the criminal trial and the sealing order he had obtained in March. Counsel for the Union did allow, however, that the grievor?s attempt to have Ministry officials charged for possession of child pornography was not helpful to his case. Counsel for the grievor argued strongly that the Ministry?s argument ? that the judge in the criminal trial had considered the grievor?s dismissal as one of the factors he used to mitigate the sentence and that I ought not to upset the balance of total justice ? was completely invalid. The question of the grievor?s job status belonged solely within the jurisdiction of the GSB, and my job was simply to determine whether or not the Employer had had just cause in dismissing the grievor. In short, I should not take the judge?s reasoning into account. 46 Perhaps the heart of the Union?s case was best captured in a statement made by its counsel: ?This case is about whether or not a man who was violated as a child, who then engages in completely predictable behaviour: is it right for that person to be terminated?? While the grievor had clearly committed serious misconduct, in terms both of the sexual assault on a minor and of using an employer computer to view pornography ? and while no one was arguing that this conduct was not reprehensible ? it was at least understandable, given Dr. Clyne?s evidence. That, plus the grievor?s service of 22 years, and in view of the procedural and evidentiary weaknesses in the Ministry?s case, should lead me to conclude that the discharge was without just cause. Case Law The following cases were submitted by the parties for my assistance: Ministry of Correctional Services and OPSEU (Gardiner) (1994) (Grievance Settlement Board 160/92, Gray); Ministry of the Attorney General and OPSEU (Gutierrez) (1981) (GSB 419/80, Roberts); Ministry of Correctional Services (Mandar) (1994) (GSB 87/93, (Waisglass); Re Emergency Health Services Commission and Canadian Union of Public Employees, Local 873 (1988), 35 L.A.C. (3d) 400 (Black);Re University of British Columbia and Canadian Union of Public Employees, Local th 2950(2005) 138 L.A.C. (4) 358 (Hope); Re Smith and Treasury Board (Canadian Penitentiary Service) (1979) 21 L.A.C. (2d) 411 (Mitchell); Re The Crown in Right of Ontario (Workers? Compensation Board) and Canadian Union of Public Employees, Local 1750 (1995) 45 L.A.C. th ) 257 (Roberts); Re Cape Breton County Correctional Centre and Canadian Union of Public (4 Employees, Local 1146 (1978) 19 L.A.C. (2d) 325 (Ferguson); Re Regional Municipality of th Ottawa-Carleton and Canadian Union of Public Employees, Local 503 (1994) 44 L.A.C. (4) 95 (Stewart);Re University of Ottawa and International Union of Operating Engineers, Local 796- th B (1994) 42 L.A.C. (4) 300 (Bendel); R. v. Teskey (S.C.C. [2007] S.C.J. No. 25; Ministry of Correctional Services and OPSEU (Miller and MacPhail) (1989) (GSB 531/82, Verity); Re Corporation of the Township of Amherst Island and OPSEU (Gavlas) (1994) (Briggs); Ministry of Natural Resources and OPSEU (Hill) (1995) (GSB 1941/94,Gray); Ministry of Labour and OPSEU (Rodriques) (2007) (GSB 2005-1927, Brown); Ministry of Financial Institutions and OPSEU (Grummett) (1991) (GSB 1656/90, Keller); Ministry of Correctional Services and OPSEU (Ferraro) (1984) (GSB 373/84, Delisle); Kingston Regional Ambulance Service and Public Service Employees Union and Its Local 462 (Cuddy) (1994) (Palmer); Re Ministry of Government Services and OPSEU (Anonymous) (1983) (GSB 268/83, Mclaren); Re X and Y (G) 47 (2006) 156 L.A.C. (4th) 423 (Petryshen); Civil Service Union, Local 52 v. Edmonton (City) (2000) (Joliffe); Re Toronto Area Transit Operating Authority and Amalgamated Transit Union (Blake,et al.) (1988) (GSB 127/87, Shime); Copp v. Canada Customs and Revenue Agency (2003) (CPSSRB, 2003, Quigley); Ministry of Correctional Services and OPSEU (Sammy et al.) th (2001) (GSB 0224/01, Harris); Re Seneca College and OPSEU (2002), 109 L.A.C. (4) 334 (Carter); Ontario College of Teachers v. Fisher (2004) O.C.T.D.D. No. 22;Ministry of Community and Social Services and OPSEU (Clinton) (1995) (GSB 2201/93, Briggs); Liquor Control Board of Ontario and Ontario Liquor Control Board Employees? Union (Huvos) (2003) (GSB 2003-0710, Abramsky); Ministry of Correctional Services and OPSEU (Campbell) (1992) (GSB 1876/91, Charney); Ministry of Community and Correctional Services and OPSEU (Collin) (2006) (GSB 2001-1578, Harris); Liquor Control Board of Ontario and Ontario Liquor Board Employees Union (Massa) (2000) (GSB 2033-97, Abramsky); Ministry of Transportation and OPSEU (Levesque) (2001) (GSB 112/99, Abramsky); Ministry of Natural Resources and OPSEU (Bousquet) ((1991) (GSB 541/90, Gorsky); Toronto Board of Education v. Ontario Secondary School Teachers? Federation, Deistrict 15 91997) S.C.J. No. 27; Kelly v. Linamar Corp(2005), Ontario Superior Court of Justice, O.J. No. 4899; Toronto Police Services Board th and Toronto Police Association (Singh) (2006) 153 L.A.C. (4) 118 (Swan); Ministry of Natural Resources and OPSEU (Wickett, et al.)(2005) (GSB 2001-0542, Petryshen); Re Ministry of Correctional Services and OPSEU (Sammy,et al.) (2002) (GSB 0223/01, Harris); Mains Ouvertes-Open Hands and OPSEU (Pilon) (2004) O.L.A.A. No. 879; Babineau v. Treasury Board (Correctional Service of Canada) (2004), C.P.S.S.R.B. No. 132; Samuel Manu-Tech Inc. and United Steelworkers of American, Local 8782 (2004) (Carrier); Slocan Forest Products and IWA-Canada, Local 417I (1996) (Devine); Alberta Union of Provincial Employees v. Lethbridge Community College (SCC, 2004) 1 S.C.R. 727; Ministry of Solicitor General and Correctional Services and OPSEU (Bonacci)(1997) (GSB 1923/96, Dissanayake); Ministry of Correctional Services and OPSEU (Dannenberg) (1990) (GSB 414/89, Dissanayake; Re Ministry of Consumer and Commercial Relations (Tanevsky) (1989) (GSB 0763/88, Dissanayake); Re Ministry of Community Safety and Correctional Services (Sammy,et al.) (2004) (GSB 2001-0224, Harris). 48 D ECISION As is only too evident, this is a long, complex, and tragic case, with many disparate dimensions and layers. However, given how the case was framed by the Union, two fundamental interpretations are possible: first, that the grievor?s behaviour was non-culpable by virtue of the fact that he was disabled or, second, that it was culpable, but given all of the mitigating circumstances as well as the procedural deficiencies, it was without just cause. Both interpretations rely heavily on the psychological evidence of Dr. Clyne, which centres on her hypothesis that the grievor?s having been sexually assaulted as a child, together with the stress resulting from the breakdown of his marriage and from serving in undercover roles, in effect, ?set the grievor up? to such behaviour. Dr. Clyne?s Hypothesis This hypothesis is the main line of defence in this arbitration. To bevery candid, it is very difficult to decide how much weight to assign to it. On one hand, it does make sense, at both the intuitive and theoretical levels; on the other hand, given the actual evidence with respect to the grievor?s undercover work, there is some question as to the degree to which it satisfactorily explains his conduct. The operative language from Dr. Clyne?s letter of 4 May 2004, which speaks to the role of undercover work in her three-factor hypothesis is the following: Psychological literature evaluating the effects of engaging in undercover work, especially as an operative agent, identifies accentuation of pre-existing agent vulnerabilities, identity strain arising from prolonged ?role playing?, sympathy for the views of the targeted criminal and corrosion of the agent?s value system?.The longer the period of time during which the individual engaged in undercover work the more severe the difficulties encountered. [The grievor] was intermittently engaged in such work over a period of 12 years. There are several problems here. First, as the grievor?s own list (Exhibit 118) makes clear, six out of the ten investigations in which he participated as an operative from 1990 through 1997 are described as ?surveillance operations?. Evidence from Mike Morencie, manager of the Evaluation and Special Services Unit from 1996 to 2001 and himself an experienced investigator, made clear that surveillance operations are not considered to be undercover, nor do they have the same risk attached. The words ?surveillance? and ?undercover? clearly connote different activities and have different definitions, the key difference being that in undercover work, the operative actually adopts an identity as a criminal. Further, once the grievor joined the 49 ESSU in 1998, his role was that of coordinating and leading projects, which did not involve him personally in undercover work. Thus, of the total of 31 investigations in which the grievor participated from 1990 through 2000, the evidence would suggest that the grievor himself was personally involved in no more than five or six operations that required him to work as an undercover operative. The evidence of Mike Kindree and Mike Morencie also makes clear that the grievor did not engage as an undercover operative between 2000 and his arrest in 2002. Quite apart from the quantum of undercover work actually done by the grievor, another concern about the adequacy of Dr. Clyne?s three-factor hypothesis as it explains the grievor?s behaviour arises out of the nature of the grievor?s undercover work. For this purpose, Dr. Clyne had relied heavily on the work of Dr. Michael Girodo of University of Ottawa?s School of Psychology, and she proffered a draft chapter entitled ?The Psychology of Undercover Work?, intended for a book Dr. Girodo was writing, entitled Psychology of Policing,as setting out Dr. Girodo?s ideas in this area. This chapter, entered into evidence as Exhibit 82,makes it clear that the sort of police undercover work that results in the four pathologies identified by Dr. Clyne in her letter of 4 May 2004 letter (see quoted paragraph on previous page) is intensive, deep, and prolonged assuming of a criminal persona, often involving a significant level of danger. With absolutely no disrespect intended towards the grievor?s work, most of the actual undercover work in which he was involved did not appear to be as continuing or intense as that suggested in the Girodo work, nor did it involve the same degree of risk. Further, while I?m not suggesting that the grievor?s work in supervising operations was not stressful, it simply was not ?undercover? work as Dr. Girodo used the term in his work and, therefore, does not really satisfy the undercover component of Dr. Clyne?s three-factor hypothesis. Thus, the evidence with respect to both the amount and the nature of the undercover work actually done by the grievor does not support Dr. Clyne?s statement that ?[The grievor] was intermittently engaged in such work over a period of 12 years?. According to Exhibit 118, the list compiled by the grievor himself, the total period was 11 years, for the last three of which he was in the ESSU, supervising operations rather than participating in them in undercover roles; most of the operations in the previous eight years were surveillance rather than undercover; and the nature of most of his actual undercover work was not really the kind of undercover work identified by Dr. Girodo as seriously problematic for agents in terms of the four pathologies. 50 Setting aside these concerns for the moment, even if we accept Dr. Clyne?s testimony in toto and without reservation, the hypothesis does not foreclose the element of human volition; it does not mean that the grievor had no choice or personal control over what he did, whatever predisposition may have existed. Moreover, even accepting the hypothesis as presented by Dr. Clyne in her evidence before this Board, she made a number of troubling qualifiers with respect to the hypothesis as well as other doubts and concerns that are set out in the following paragraphs. I saw Dr. Clyne as a candid and forthright witness. She and her evidence stood up well to a long and detailed cross examination. And, while she tried to be helpful to the grievor, she was forthright in conceding that her analysis had limitations, that she knew very little about undercover work, and that her three-factor hypothesis explaining his behaviour depended heavily on the work of Dr. Girodo. Pressed on this subject, she conceded that her knowledge of Dr. Girodo?s work was based upon one half-hour phone call, as well as one paper and some other e- mailed material. She also acknowledged that she really didn?t know how much undercover work the grievor had actually done, or the nature of that work. In her letter of 21 November 2004, written at the request of the grievor?s counsel in this matter, after describing the three-factor hypothesis and the progress the grievor had made in psychotherapy with her, Dr. Clyne states, ?while his work in therapy remains incomplete his ongoing work lessens the likelihood of his reoffending in the future?.? Close to the end of her cross examination, after explaining that the grievor knew at the time that his child molesting was morally as well as legally wrong but that he didn?t know why he did it, she was asked by counsel for the Ministry about the grievor?s understanding and beliefs in that respect ?now? ? that is to say, in December 2005. Her answer was as follows. Through the work done in therapy, his value system is more conventional. He is less oppositional to authority, beginning to recognize the need for boundaries and his need to respect them. Having said all of that, he still had a long way to go [at the time he left my practice]. One troubling exchange came at the very end of the cross examination, when Dr. Clyne was asked if she was aware that, in respect of the legal difficulties the grievor was having, there was more than one minor involved. She answered that she was not, that the grievor had told her of 51 only one. Her clinical notes (Exhibit 84) confirm that he told her about only one charge: that of sexually assaulting the nine-year-old neighbour girl, the charge to which he eventually pled guilty. When the grievor started working with Dr. Clyne in September of 2003, there were three charges extant, and two of those were dropped only on December 8, the day he pleaded guilty to the third charge. This means that although he was facing charges relating to more than one child, he appears not to have mentioned this to her. As noted on the previous page, I also have some concerns as to how much actual undercover work the grievor told Dr. Clyne that he had done. So the question must be raised as to whether or not the grievor was completely candid with Dr. Clyne. If the grievor was not accurate in the information he provided to her, as the evidence seems to suggest, then any confidence I might have in her three-factor hypothesis as an exculpatory explanation for his behaviour is weakened even beyond the question of volition and the qualifications she raised herself. The Non-Culpable Line of Argument Counsel for the Union advanced the position that I should find that the grievor was disabled by virtue of having been assaulted as a child, which set up a predisposition to such behaviour that was exacerbated by the breakdown of his marriage and the stress of undercover work, thus triggering his behaviour, both in respect of sexual assault on a child and computer pornography. The operative paragraph of Dr. Clyne?s letter to Mr. Leeb is set out below and speaks to the question of disability. [The grievor] has aspects of a personality disorder which results in his being very self- focussed and having difficulty understanding the effects of his actions on others. He further has an elevated trauma level suggesting that he has been subjected to events to which he responded with fear, helplessness and/or horror. Both of these psychological findings are consistent with the childhood abuse which he has reported during his psychotherapeutic work. His work as an undercover operative is likely to have severely exacerbated an already preexisting condition. As such he is considered to be disabled in relation to his ability to pursue ongoing work which requires deception and secrecy and which may result in increased levels of anxiety and emotional distress [emphasis added]. It is unlikely that he will ever be able to engage safely in work of such a nature again In view of all the limitations and qualifiers associated with Dr. Clyne?s three-factor hypothesis, her status as a psychologist (not a psychiatrist), and her limited knowledge of undercover work, the fact that the evidence indicates that the grievor didn?t actually do a great deal of undercover work, together with some concern that the grievor may not have told Dr. Clyne the complete truth, it would be very difficult to find that the grievor was disabled. Beyond this, however, the 52 words of Professor Donald Carter, in his Seneca College and Ontario Public Service Employees Union, Local 560 (109 L.A.C. (4th) 334), are pertinent here. This case dealt with a community college instructor discharged for use of a college computer for purposes of viewing, downloading, and storing child pornography. The first question we must answer is whether the grievor was suffering from a disability within the meaning of the Human Rights Code at the time of the activities that led to his discharge?The medical evidence presented to us, however, does not support a conclusion that the grievor was suffering from any form of medically recognized mental disorder. The union argued that the grievor was suffering from a type of impulse control disorder that took the form of pathological attraction to internet pornography. The evidence, however, does not support this conclusion. The grievor through his own testimony indicated that he could exercise self restraint if he chose to do so?. Similarly, in the case before me, the grievor?s own testimony makes clear that he could control himself: he stopped his assaults on X of his own volition in 1999 and says that he stopped viewing Internet pornography upon his arrest in 2002 (and that he has not resumed viewing it). The essential logic of Dr. Clyne?s three-factor hypothesis is that the large volume of undercover work undertaken by the grievor exacerbated a pre-existing vulnerability to sexually assaulting children set up by his own abuse as a child, with the breakdown of the grievor?s marriage adding extra pressure and stress. In effect, the grievor couldn?t help himself. But a predisposition, or even an exacerbated pre-disposition, does not foreclose volition, as the grievor himself demonstrated by stopping his assaults and viewing of pornography. This reality, together with the facts that (1) the evidence shows that the grievor really did not do much undercover work, (2) the evidence suggests that the grievor was not completely truthful with Dr. Clyne, and (3) the qualifiers and caveats Dr. Clyne herself placed on her hypothesis as explaining and excusing the grievor?s behaviour lead me to dismiss the argument that the grievor was disabled. The Union?s argument with respect to discrimination on the basis of record of offences does not apply here because, at the time of discharge, the grievor had not been convicted, much less pardoned, for any such offences. 53 The Culpable-Conduct Line of Argument The argument that the grievor?s actions could be properly characterized as culpable conduct but that the Employer lacked just cause rests on a number of different sub-arguments, and I will deal with each of these in turn. Would the Employer?s Reputation Have Been Damaged? Counsel for the grievor argued that there was no evidence whatsoever that the Employer?s reputation would have been harmed had the grievor continued in his employment and that such an argument by the Ministry was purely speculative. But arbitrators accept the proposition that, if the misconduct is serious enough or of a particular type that attracts the opprobrium or distrust of the public (or of fellow employees or clients), or an unwillingness to deal with the employee, an employer may discharge such an employee in order to safeguard its reputation and its legitimate business interests, of which its reputation is a critical element. The still-definitive case that speaks to this is Re Millhaven Fibres Ltd. and U.S.W., Local 4697 (1967) 5 L.A.C. (2d), which sets out the elements necessary to justify the termination of an employee for off-duty conduct.Millhaven Fibres, though an old decision, still continues to be regularly cited: for example, it forms the principal basis of Brown and Beatty?s section on discipline for off-duty conduct, and it is the departure point for the case-law discussions in such off-duty-conduct cases asDorr-Oliver-Long Ltd, Re Nova Scotia Civil Service Commission, 25 L.A.C. (4th) 269; Re British Columbia (Workers? Compensation Board) and C.E.U. (Campbell) 64 L.A.C. (4th) 401; Re Canadian Standards Association and C.U.P.E., Local 967 (Hunter) 1998); Re Lethbridge (City) and A.T.U. Local 987 (Tettensor) (2000); and many others. Millhaven Fibres sets out five conditions or circumstances that entitle an employer to discipline an employee for off-duty conduct: 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, thus rendering his conduct injurious to the general reputation of the Company and its employees. 54 5.places difficulty in the way of the Company properly carrying out its function of efficiently managing its Works and efficiently directing its working forces. If one or more of the above questions must be answered in the affirmative on all the evidence, then the employer is properly concerned with the employee?s conduct, regardless of whether it occurred on or off the company property or in or out of working hours, and depending on the gravity of that conduct, the Company will be justified in taking appropriate disciplinary action, provided that it gives proper consideration to any relevant mitigating factors. It will be seen that two of the foregoing five factors speak to the question of the Employer?s reputation in this case. The question here is whether or not the grievor?s behaviour, particularly with respect to sexual assault on at least one minor but also with respect to pornography ? adult, teen, and child pornography and child erotica ? would have damaged the Employer?s reputation had he not been discharged. A review of the case law in respect of discharge for off-duty conduct, including sexual assault, reveals a wide variance in result, and I agree with Arbitrator Nicholas Glass?s observation, in Re British Columbia (Workers? Compensation Board) and C.E.U.¸64 L.A.C. (4th) 401: ?some readers may find the differing results rather striking. In most cases, the distinguishing factors, where dismissals have been set aside, vary considerably, and are on the face of it of a relatively minor nature. That is not to say that the result is wrong in any particular case but it does suggest that the factors to be weighed in these decisions, seem to be given different weight, as between one Board of Arbitration and the next. While the decisions in this area cover the range from one extreme to the other, certain broad themes are apparent. One of these is a deep scepticism on the part of some arbitrators with respect to the possible impact of an employee?s off-duty conduct on an organization?s reputation. For example, Arbitrator A. E. Black cautions that ?arbitrators must exercise special care that the employer? does not have ?an excessive concern? with its public reputation (Re Emergency Health Services Commission and C.U.P.E. Local 873, 35 L.A.C. (3d) 400). This scepticism often takes the form of requiring that an employer furnish objective and convincing evidence that its reputation has been hurt. That argument was made in the case before me. However, it seems self-evident to me that actual harm to reputation is not ? and indeed cannot be ? an evidentiary requirement in such a situation, given that the decision to terminate is made ? as it was here ? for the precise purpose of foreclosing such damage. In Kelly v. Linamar Corp. (Ontario Superior Court of Justice, November 18, 2005), for example, the Court observed that ?Actual harm need 55 not be shown?. Arbitrator Glass in Re British Columbia (Workers? Compensation Board), observed, With great respect I cannot agree that the Employer is obliged to prove injury to the general reputation of the Employer and its employees, by placing before the tribunal specific objective evidence of damage to that reputation. In civil claims of defamation, the Court is not impressed by a parade of witnesses stating that their estimation of the plaintiff was lowered by the libel or slander complained of. Similarly, it is not impressed by a parade of defence witnesses saying the opposite. It is the task of the Court to assess the level of the reputation, and to judge the impact upon that reputation of the words complained of, without deferring to the judgement of specific witnesses as to that impact. Similarly, in this exercise, I do not think any tribunal should call upon the employer to supply that kind of evidence, or fail in its contention. It is the job of the tribunal itself to exercise its own judgment as to what a fair-minded and well-informed member of the public or relevant constituency may think about it. In this case, therefore, any evidence relevant to damage that might have been done to the Employer?s reputation must necessarily be indirect and inferential in nature. I agree with the test, as enunciated by Arbitrator Glass in the foregoing case as well as in Re Canadian Broadcasting Corporation and Canadian Media Guild, of the well-informed, fair-minded member of the public: that is the cohort of public opinion with which an arbitrator should be concerned in such a matter. In my view, it is self-evident that the public assigns a very high degree of opprobrium to sexual assault on a child and to certain forms of pornography. This fact is also reflected directly in both the evidence and case law before me. There are, first, the comments of MacKinnon, J. at the grievor?s sentencing hearing on 9 June 2004, characterizing his behaviour as attracting ?the moral and community revulsion that attaches to him and all persons who admit to or are convicted of such grievous and a deviant sexual behaviour?.? There are the grievor?s own words, as set out in his e-mail of 2 April 2002, to his fellow Conservation Officers, part of which is set out below: ?I am here to apologize to each and every one of you, for when I read what we in the OCOA say we as Conservation Officers are all about?pride, truth, trust, integrity?etc., I am sorry to say that I have let all of you down?No amount of apologies can take away the hurt that I did. Nor will it take away the shame I feel for what I have done. Ironically, too, there are also the words of the grievor?s counsel, in the form of his argument that I should make this award anonymous. Counsel argued persuasively that to name the grievor and thus attach his name to a decision that sets out the type of evidence that necessarily must feature in this award ? particularly were he to be reinstated in the government?s service ? would 56 inevitably be to burden him with a reputation that would follow him around, thus exposing him to criticism and vilification, and, in effect, possibly compromising his career and enjoyment of work for as long as he continues to work. I agree with this argument but also take it as a testament to the degree of opprobrium with which people view such behaviour. Accordingly, I have agreed to counsel?s request to make the award anonymous. In addition to evidence directly out of this case, there is ample comment in the case law. Kelly v Linamar: ??.one a crime of moral turpitude which most members of the public would find to be repulsive and reprehensible?.?; Workers? Compensation Board and C.U.P.E.: ?The Employer, of course, relies on the moral reprehensibility of those crimes and the general repugnance with which they are regarded?.No one denies the repugnancy of the grievor?s crimes??; Clinton GSB (Briggs), 1995: ?There is no excuse for sexual assault?.Society is becoming increasingly less tolerant of sexual assault?. So I have no difficulty in concluding that the public, including the fair-minded and well-informed component, would view the grievor?s actions in a highly negative light and wonder how the Ministry could justify continuing to employ him in public service. Some interesting support for the sense of public attitudes with respect to the sexual exploitation of children is to be found in Re Civil Service Union, Local 52 v. Edmonton (City) (Joliffe, 2000), where a civilian supervisor in the Edmonton Police Service was discharged for downloading, saving, and filing child pornography on his personal computer. What is particularly noteworthy about this case is that the employer had proffered properly designed and reliable survey evidence of public attitudes with respect to those using child pornography, and one statistic in particular stood out: 88.4% of those surveyed supported or strongly supported dismissal of a special constable found in off-duty possession of child pornography. Further, ...82.3% of the respondents said that they either agreed or strongly agreed that a situation involving a special constable found to be in possession of child pornography when off duty would damage the reputation of the E.P.S. Paras 58 and 59: (p. 29). Later in the award, Arbitrator Joliffe commented, The public?s concern is clear enough, both as a matter of common sense and also as documented in the Hargreaves survey. Despite its hearsay nature and our reservation as to weight to be applied, it should not be taken as surprising as to the public concern recorded therein over any E.P.S. employee involving himself in such conduct. 57 As did Arbitrator Joliffe, I take this as reliable evidence of the public perception of those who use child pornography. And it goes without saying that, of the two forms of misconduct in which the grievor engaged, the viewing of pornography on the Employer?s computer and sexual assault on at least one minor, the latter was, by a significant margin, the more serious. But there is another dimension to this question: the test used by Arbitrator Glass included not only ?the fair-minded and well-informed member of the public? but also any other ?relevant constituency?. The relevant constituencies here, in my view, are other Conservation Officers, other employees of the Ministry of Natural Resources, and members of other law-enforcement agencies. What would they have thought about the grievor?s continuing in his employment when he had committed the acts in question? I note that in a number of the cases dealing with misconduct of a similar nature (for example, Re Emergency Health Services Commission and Canadian Union of Public Employees, Local 873 (35 L.A.C. (3d) 400); Ministry of Correctional Services and OPSEU (Mandar) GSB 87/93 (Waisglass); Re Workers? Compensation Board and Canadian Union of Public Employees, Local 1750, 45 L.A.C. (4th), 257), there was some evidence relating to the feelings of other employees ? for example, from a union president testifying that his members would not object to the grievor returning to the workplace and to working with him again, or even from a manager testifying that he would have no trouble working with a grievor again. While the Employer in the instant case did not explicitly argue on the basis of the third of the Millhaven Fibres tests ? the refusal, reluctance, or inability of other employees to work with the grievor ? I find it at least noteworthy that, over the 24 hearing days and almost two and a half years of this case, no one other than the grievor?s psychologist, Dr. Clyne, testified on his behalf; no one came forward to speak on his behalf or to say they would be willing to work with him again. As the Vice Chair hearing the case over this very long period, I anticipated that I might hear something to indicate such support for the grievor ? from colleagues, fellow Conservation Officers, or even union officials ? but I never did. I note that the grievor testified that at least five of his colleagues had provided supportive letters on his behalf for purposes of his criminal sentencing, but neither any of these nor any other supportive material were introduced into evidence in this hearing. Finally, employees of the Ministry of Natural Resources are themselves members of the public, and I see absolutely no reason to conclude that they, any less than other fair-minded, well-informed 58 members of the public, would not view the grievor?s actions with revulsion; perhaps even more so, since such behaviour reflects on their Service. Given counsel for the Union?s assiduous, unstinting, and far-reaching efforts on the grievor?s behalf throughout this entire case, I do not consider it unreasonable to infer that the absence of any evidentiary or moral support in this regard may indicate that such individuals did not view the grievor?s termination as a grave miscarriage of justice. One dimension of the ?excessive concern? admonition that, in the view of some arbitrators, can be relevant to a public-sector enterprise can be found in Re Workers? Compensation Board and Canadian Union of Public Employees, Local 1750 (Simmons). The Union argued in that case that the employer here, a government service, is a monopoly and, since the public can?t get the service anywhere else, there is no risk of a loss of business; accordingly, then, the employer?s concern for reputation was exaggerated, a conclusion that the Board seemed to accept. This argument is grounded in the proposition that, in the matter of off-duty conduct, there must be a demonstrable nexus between an employee?s behaviour and the legitimate business interests of the employer. In the private sector, the impact of an employee?s behaviour on the business and revenue of his employer, while difficult to measure and demonstrate, seems an appropriate standard because clients can choose to take their custom to a competitor who may appear more, say, trustworthy, where the values of the enterprise are more closely aligned with their own. That is, such an option implies a relationship between an organization ? particularly one that provides only services ? and its clients. A public-sector organization is, by its very nature, a monopoly, and the argument that such an organization?s reputation does not matter is based on the assumption that its clients? attitude to and impressions of that organization do not affect the relationship between client and service provider: they can?t go anywhere else for the needed services. With the greatest of respect to the Simmons board, I believe that the nexus principle holds equally in the public sector as in the private. The fact that it is a monopoly does not mean that its public reputation is any less important than that of a private-sector company. It also flies in the face of much of the evidence, both in this and in other cases relating to the Ministry of Natural Resources, that clearly establishes that MNR employees take great pride in their service, consider it something of a ?calling?, and guard its integrity and reputation carefully. Indeed, the grievor?s own e-mail to his colleagues (2 April 2002) reflects and refers to this pride. So I find that the reputation of the Ministry of Natural Resources and that of the conservation service are 59 no less important that the reputation of any private-sector enterprise, despite their having a monopoly on the services they provide. Another theme evident in the case law dealing with discharge for off-duty conduct, particularly sexual assault, is that an important factor in explaining arbitral reinstatement is the fact that the grievor?s conduct was a once-only occurrence, an isolated incident that is highly unlikely to recur. For example, in Re Emergency Health Services Commission and Canadian Union of Public Employees, Local 873 (35 L.A.C. (3d) 400) (submitted by the Union),the grievor had been dismissed for one attempted sexual assault on 13-year old babysitter, which she had successfully resisted, while he was severely drunk. Arbitrator A. E. Black reinstated the grievor, substituting an eight-month suspension for the discharge. Characterizing the grievor?s misconduct as ?a serious error in judgment, both in becoming so severely intoxicated and in his assault on the young babysitter?, the arbitrator observed, ?I find absolutely no reason to believe that the poor judgment exhibited by the grievor in the particular circumstances in which it arose would carry over into his professional life. Sound judgment in one?s calling or profession is developed through training, experience and the objectivity which comes with that? ?It cannot be overlooked that the incident appears to have resulted from the culmination of a series of extreme personal difficulties directly affecting the grievor, occurring in a state of extreme intoxication? [W]ould a reasonable person, having knowledge of the circumstances which gave rise to this misconduct, view the retention of the grievor by the Employer in its employ in such a way as to endanger the high level of trust, credibility and responsibility which the Employer is entitled to expect? I do not think so. The Employer has not provided any evidence to support its perception that in these circumstances the public would have a loss of confidence or unforgiving attitude towards the commission if the grievor was reinstated to his employment. It might be noted that amongst the other circumstances alluded to by the arbitrator were the fact that the grievor was extremely intoxicated at the time of the attempted assault, that he was an alcoholic, that he was undergoing severe financial and marital problems resulting from, amongst other things, the unexpected birth of triplets, that the incident was out of character for the grievor on the basis of testimony from co-workers and psychiatric reports, and that there was ?no evidence, medical or otherwise, of any sexually deviant attitudes or propensity demonstrated by the grievor?. In contrast, in the case before me, there was a series of six (or twelve, or some 11 other number) of deliberate sexual assaults on a child over a three-year period that started when 11 There was a contradiction in the evidence on this point, as set out at page 70. 60 12 she was nine years old, as well as (at least the possibility of) assaults on other children, in addition to the use of an Employer-supplied computer over five years to view a wide variety of inappropriate material, including teen pornography, child erotica, and child pornography. These elements, taken together, presented the Employer with a picture of a deeply troubled person, a picture that was subsequently reinforced by Dr. Clyne?s description of the grievor?s behaviour as ?sexually deviant?. Taking all of the evidence into account, then, I conclude that the Ministry was correct in concluding that a fair-minded and well-informed member of the public would look with particular distaste on what the grievor had done.In a service organization such as a government department, employees are its face, and its reputation depends on how that face is affected by the behaviour of those employees. It is very likely that clients or members of the public who knew of such behaviour on the part of a continuing member of MNR would have thought less of the Ministry had it not terminated him. A similar argument might also be made with respect to MNR?s relationship with other law-enforcement agencies and the impact that retaining the grievor might have on its reputation with those agencies. I also conclude that it?s likely that the Ministry may have suffered some loss with respect to its internal reputation ? what its own employees thought about it ? as suggested by the absence of moral or evidentiary support from possible witnesses to refute this conclusion. Breach of Trust and Conduct Inconsistent with Duties and Responsibilities Given the seriousness ? and, in the words of the sentencing judge, ?moral and community revulsion? ? that attaches to sexual assault on a child, there is no doubt that such conduct was both a very serious breach of trust and, as reflected in the grievor?s own words in his e-mail to his fellow Conservation Officers, conduct completely inconsistent with the duties, responsibilities,and expectationsof a Conservation Office. In my view, both these conclusions are so self-evident as not to require any further amplification or explanation. The grievor?s actions show such poor judgment and so little control, on so many levels, that it is hard not to agree with the Employer that they ?irreparably breached any trust or confidence? it could have had in him. 12 It must be borne in mind that, at the time of the grievor?s dismissal, there were still three charges outstanding, and there was the grievor?s answer to Mr. Vervoort, ?some may be; some aren?t.? Thus, the Employer had good reason to believe that the grievor, who had pled guilty to assaulting at least one victim, might very well have assaulted others, as well. 61 13 The grievor was a peace officer; he wore a uniform and was equipped with firearms; he had powers of arrest. His employer should be able to expect that, at the very least, one of its peace officers will not intentionally violate the criminal law and, especially, will not engage in what is considered a particularly reprehensible crime: sexual assault on a minor. The employer should be able to have confidence that one of its officers won?t use an employer-issued computer to ?chat? with young girls, at least one of whom he sexually assaulted, and won?t use such a computer to seek out and view pornography. Thus, these two factors ? both the idea of a peace officer engaging in sexual assault, especially on a minor, and also using for questionable personal activities a computer it provided ? demonstrate a grave breach of trust and behaviour utterly incompatible with the grievor?s legal and moral duty as a Conservation Officer. In the case of Toronto Police Services Board and Toronto Police Association (Singh), 153 th L.A.C. (4) 118 (Swan), the grievor, a civilian court officer with the Toronto Police Service, was discharged for sexually assaulting a 19-year-old female university student, using the date-rape drug GHB. The resulting criminal charge had been stayed, so the arbitration was the first litigation of this case. While much of the decision turned on evidentiary issues, the arbitrator concluded that the grievor had in fact committed the assault and dismissed the grievance. I am struck by the parallels between the two cases: one grievor a civilian court officer with a police service, the other a uniformed Conservation Officer and a peace officer with MNR; intentional sexual assault in both instances on entirely vulnerable victims, the victims having been made vulnerable by each of the grievor?s actions. I find it significant that an arbitrator of Mr. Swan?s stature would find that ?the integrity of the [Toronto] Police Service and the reputation of the police in general? were amongst the factors justifying the grievor?s discharge. Given all three grounds flowing out of the grievor?s sexual assault on a minor ? the impact on the employer?s reputation, breach of trust, and conduct inconsistent with the grievor?s duties as a Conservation Officer ? some further words of Arbitrator Joliffe, in the City of Edmonton case are pertinent here. In our view, the off duty conduct supported a discipline response and was grave enough all things considered, including the nature of the grievor?s off duty activity, the nature of his employer?s operation and position within that employment, the effect on superiors 13 As a Conservation Officer, the grievor was equipped with a rifle, a shotgun, and a semiautomatic handgun. 62 and subordinates, the reasonable expectations of his employer and the public, and damage to reputation, to have jointly rendered the employment relationship beyond repair. Contravention of WDHP and Operating Procedure re. Usage of IT Resources In view of what is set out already, there is little to add with respect to the grievor?s use of a Ministry computer to view pornography. Suffice it to say that the grievor?s computer hard-drive contained evidence of visits to a great many web sites, with particular emphasis on young teen pornography. Many of these were visited on numerous occasions. According to the evidence of Detective Constable Menard, only three of the images in the grievor?s disciplinary file were considered to be child pornography, but it will also be remembered that the web sites submitted into evidence represented only a small sample of those actually visited; Ms. Shore examined 12 of 99 pages consisting entirely of lists of web-site addresses, the last and latest of the twelve being dated January 2001. It will also be remembered that Dr. Clyne testified that there was a progression in his viewing of pornographic materials: adult to teen, teen to child. And, according to his own evidence, the grievor did not stop his viewing of pornography until his arrest, in April of 2002. In view of Computergate, it is clear that until June 2001, there was some misunderstanding in the Ministry of Natural Resources about the seriousness of using an employer?s computer to view pornography, despite the two warnings that appear on the screen on log-in and the November 1998 memorandum from the Deputy Ministry, Ron Vrancart. By June 2001, however, it had become clear that there had been a major investigation related to inappropriate sexually explicit materials and MNR IT resources, that six people had been discharged and a large number disciplined. Indeed, the grievor himself had been peripherally involved in the investigation and was cautioned by Mike Kindree. Pursuant to all of this, the Deputy Minister, John S. Burke, had sent two very detailed and pointed warnings to all Ministry personnel in May and June. One of the principal reasons for the modification of the discharges by the arbitrator hearing the grievances of those discharged was management?s condoning of the impugned conduct; indeed, some managers had even participated in the improper IT use. With the Burke memorandum of 29 June 2001, however, no one in the Ministry could possibly have concluded that management was condoning or tolerating any use of Ministry IT computers or IT resources for pornographic images. 63 And it should be noted that, as made clear by the investigation and the arbitration award dealing with the grievances of those disciplined and discharged, Re Ministry of Natural Resources and OPSEU (Wickett, et al.) (GSB 2001-0542, Petryshen), 2005, there was no illegal material, no child pornography, involved in this case. That the grievor would continue to engage in this activity, not only violating what had to have been well-understood employer policy but also the criminal law, in respect of child pornography, was both an extremely serious form of misconduct and a further indictment of the grievor?s judgment. The Credibility of Greg Sones, as Both Witness and Decision Maker Counsel for the Union attacked the evidence and credibility of the Ministry?s principal witness, Mr. Sones, Director of the Special Investigations Unit. Mr. Sones had testified that, after the Ministry had received the Report of the Office of the Children?s Lawyer, Grace Shore (who had already submitted the first version of her report, dealing solely with computer pornography) was directed to reinterview the grievor and, this time, ask him questions about the Report. Counsel for the Union suggested that this testimony was untruthful, given Ms. Shore?s oral evidence, which did not speak to this, and the contents of Ms. Shore?s first and second drafts, there being little or no difference between them, except for some questions relating to whether or not the grievor had used his Ministry computer to communicate with the alleged victims involved in the sexual-assault charges. These assertions went, again, to counsel?s larger argument that the Ministry investigation didn?t need to take almost a year, that the Ministry knew virtually right at the beginning that the grievor was guilty of some of the sexual-assault charges, and that the inordinate length of the investigation casts real doubt on whether or not the Employer had confidence that it really had just cause to discharge the grievor on the basis of those charges. This argument is simply not borne out by the evidence. In giving his evidence, Mr. Sones testified that he had directed Ms. Shore ?to ask questions about the Report of the Office of the Children?s Lawyer?, a phrase that he repeated multiple times in cross-examination. I agree with counsel for the Union that Ms. Shore?s oral evidence didn?t make clear what she was asked to do in her second interview with the grievor. However, she wasn?t asked about that. Moreover, her second or third draft reports were different from the first in that they did set out questions with 64 respect to the Report of the Office of the Children?s Lawyer, as well as the fact that the grievor refused to answer them. It?s clear that those questions were probing the subject of the various charges. Additionally, Ms. Shore?s interview notes from the January 6 interview (Exhibit123), which consist of a list of pre-typed questions and her hand-written notations of the grievor?s answers, make very clear that she did probe strongly in the direction of the sexual offences for which the grievor had been charged. Specifically, she asked a total of eleven questions with respect to the alleged victims (and not just whether or not he used his computer to contact them), questions either about the alleged victims themselves (three questions) or about statements in the Report of the Office of the Children?s Lawyer relating to the alleged victims (eight questions). In addition, Ms. Shore asked four questions related to the grievor?s e-mail of 2 April 2002 to other Conservation Officers and what it signified. In all cases, the grievor refused to answer. Thus, Grace Shore?s interview notes make absolutely clear that she did pursue the subject of the alleged sexual assaults in a substantial way.Thus, I must dismiss the argument that Mr. Sones?s testimony with respect to the Ministry?s investigation was evasive or untruthful. The Appropriateness of the Investigation Process Counsel for the Union argued that, in several ways, the process accorded the grievor was unfair. This argument begins with the proposition that the Employer, in effect, knew at the very beginning of the process that the grievor was guilty, on the basis of a combination of his 2 April 2002 e-mail to his fellow Conservation Officers and his answer to Mr. Vervoort?s question of the day before as to whether any of the charges might be valid (?some may be; some aren?t?). Why, then, did the investigation and decision processes take almost an entire year? All of this delay was suggestive, according to counsel for the Union, that the Employer lacked confidence in its conclusion that the criminal charges were, in and of themselves, a proper basis for termination, notwithstanding Mr. Sones?s assertion that it was the more serious of the two offences. In the context of this overall position of the unfairness of the process, counsel for the Union necessarily arguedthat, with proof that the grievor was guilty of sexual assault on at least one minor in early April of 2002, the Employer should have acted and terminated him then. The Employer?s responseto this argument was that such an action would have been precipitous and unfair, and that the Union would have been quick to complain ? properly so ? that the Employer was acting in undue and improper haste. I agree. The Employer had an obligation to ascertain 65 the facts and to refrain from making any final decision on discipline or discharge before it had done so (and the point at which this occurred would not necessarily be clear). The investigation phase of this situation took almost a year from 1 April 2002, but there are valid reasons for that: at the outset of the investigation, with respect to the most serious element of the alleged misconduct ? the sexual assault on and sexual interference with minors ? the Ministry was tied to the timeline of the South Simcoe Police Service, which didn?t even confiscate the grievor?s computer or search his home and office until May 9, more than five weeks after the grievor?s arrest on April 1; the Ministry, advised some days later that the grievor?s computer might have inappropriate material on it, then had to look into that; the Ministry had to send a copy of the grievor?s hard drive to the Ontario Centre for Forensic Sciences (OCFS), which was done on June 5, and wait for its report, which was not received until 8 August 2002; the Ministry initially delved into some of the sites listed by the OCFS but, once it had developed some sense of the volume, variety, and nature of the pornography involved, it became clear that ascertaining the true extent of the material would take a very long time as well as specialized expertise, the Ministry contacted Ms. Shore on September 11; she then had to be briefed by officials in the Ministry; Ms. Shore then had to get set up with a special computer, explore the large volume of material on the grievor?s hard drive, and then carry out her analysis, consult with the Ministry, and compile her report on the list of pornography; before reporting to the Ministry, pursuant to the procedural fairness owed the grievor, Ms. Shore had to interview him first, which was scheduled for 8 November 2002; Ms. Shore then had to complete and submit her report, a draft of which was submitted later in November; 66 the grievor was sent a copy of the report on November 29 and asked to respond to it, which he did on December 10; the Ministry then had to read and digest Ms. Shore?s draft report; in December, the Ministry acquired a copy of the Report of the Office of the Children?s Lawyer, which, because of its damning nature and the details related to the grievor?s actions in respect of several of the alleged victims, refocused the Ministry on that aspect of his misconduct. Accordingly, on December 13, the grievor was advised of the fact that the Ministry was broadening its investigation; towards that end, Ms. Shore had to reinterview the grievor, which was scheduled for December 20 but postponed until January 6; after that interview, Ms. Shore had to revise her report; the grievor was sent a copy of the revised (second) draft report on January 17; the grievor responded to the second draft report on January 27, raising a number of issues relating to the Ministry?s possession and use of the Report of the Office of the Children?s Lawyer; Ms. Shore then had to revise her report again; a copy of the final version of the Shore report was sent to the grievor on February 18 with a letter stating that the Ministry had concluded its investigation, setting out its findings, and inviting the grievor to a disciplinary meeting on February 25 to allow him to provide any mitigating information. All of this brought the parties to late February of 2003, at which point the Ministry then had to make a final decision as to what to do: continue investigating, make a decision regarding discipline, or wait, somehow putting the process on hold. The reason arbitrators have held that undue delay in imposing discipline can void that discipline is that it leads to a false expectation 67 on the part of the grievor that he or she is not going to be disciplined. In the words of GSB Vice Chair Dissanayake, in Re Ministry of the Solicitor General and OPSEU (Bonacci), 1997, The Board reiterates that the arbitral principle established in the case law is based not upon the delay per se, but the potential impact of the delay on the grievor, who may be led to believe reasonably because of the inaction that the employer was no longer pursuing the allegations. Union counsel pointed to Re Borough of North York (delays of 7 weeks and 8 months), Re Brunswick Bottling Ltd. (delay of 22 weeks), and Re Miracle Food Mart (delay of 8-9 months) where arbitrators had barred the imposition of discipline... As the Board held in Re Dannenberg, what vitiates or bars discipline is not the delay itself but the unfairness and inequity that may result from delay. In certain circumstances a short period of delay may result in such unfairness and inequity ? i.e. reasonably leading the grievor to believe that his or her conduct will not result in discipline ? while that may not be so under other circumstances. This governing principle of undue delay on the part of the employer leading the grievor to conclude that he or she is not going to be disciplined simply does not apply here. At all material times, the grievor was kept up to date on the progress of the Ministry?s investigation; indeed, he was part of it. There was no possible way that the grievor could have been led to believe that he would not be disciplined; in fact, he admitted in his oral testimony that he was worried because he anticipated that at the disciplinary meeting on March 13 he might receive a suspension without pay. Thus, I do not accept that the investigation dragged on for an unreasonably long time. While the Ministry?s actions were not perfect and some of the machinery and decision making may have been somewhat cumbersome at times, it was (mostly) necessarily cumbersome. The Ministry was faced with a very complex case ? in which it did not even control the investigation on the principal track, the criminal charges ? a case that involved a number of very serious allegations, potentially fatal to the grievor?s public-service career and with very serious implications for the Ministry itself. Taking all of the evidence into consideration, I find that, while the investigation process did take a very long time, on balance, the time was necessary in order to get to the bottom of the situation, find the facts, consider all of the relevant factors, and treat the grievor fairly. Thus, not only was the delay not undue, but it could not possibly have misled the grievor as to his true status or his jeopardy of being disciplined. Counsel for the Union had cited R. v. Teskey (in which the Supreme Court concluded that a reasonable person would apprehend that the trial judge?s written reasons did not reflect the real 68 basis for convictions after an 11-month delay between an oral decision and the issuance of reasons because the reasons might have been tailored to support the decision) and argued that this reasoning cast further doubt on the employer?s decision. With great respect, I don?t see that this applies here for the simple reason that the Ministry had not made an early decision. Indeed, they did the opposite: they took 11 months to decide, and only then announced their decision after completing their investigation. The Question of Due Process Denied by Premature Termination on 13 March 2003 Notwithstanding its argument of undue delay in dismissing the grievor, the Union also argued that the grievor was terminated too quickly; that discharge came as a surprise to the grievor on March 13 and, further, there was no apparent reason for the Employer to have made the decision to discharge him at that particular time. By virtue of doing so, the Ministry in effect denied him the opportunity to present mitigating factors. Having been told by the grievor that there were such factors relevant to the situation but that they couldn?t be discussed on orders from the grievor?s criminal counsel, Greg Sones nevertheless ?charged ahead? and fired him on 13 March 2003. Counsel argued that the Ministry should have waited to act until the grievor was in a position to share with them the mitigating circumstances. The factors referred to here were Dr. Clyne?s hypothesis that being assaulted as a child himself, together with the stress caused by the breakdown of his marriage and his undercover work, set the grievor up to do what he did, in respect of both sexually assaulting a minor and viewing child pornography. In terminating the grievor on 13 March 2003, before he had the opportunity of revealing these factors, the employer denied him procedural fairness. The problem with this argument is that the key element at the heart of this entire hypothesis ? the sexual assaults on the grievor as a child ? did not exist in March of 2003, at least in any form known to the grievor, according to his own evidence as well as that of Dr. Clyne. The grievor did not begin treatment with Dr. Clyne until September of 2003 and it was only in late 2003/early 2004, according to her oral testimony and clinical notes (Exhibit 84), that he was able to begin to start remembering that he had been sexually assaulted as a child. In other words, at the time of his dismissal in March of 2003, the only mitigating factors that the grievor was aware of were the breakdown of his marriage and 22 years of service, both of which were already known to the Ministry. There was also, according to the grievor, the stress from undercover work, but it was the Ministry?s evidence that he had actually done very little if any undercover 69 work in the four years prior to his arrest and not nearly as much as he claimed in the period before that. Furthermore, in March of 2003, it was completely unclear when the grievor would be in a position to reveal any mitigating factors or, indeed, whether or not he would even be available for work (and, if so, when), in view of the fact that there existed a high probability that he would be imprisoned. As it turned out, he pled guilty almost nine months later, on 8 December 2003, and was sentenced a further six months after that, on 9 June 2004, receiving a nine-month conditional sentence (which amounted to house arrest). I simply don?t see any reasonable or practical way in which the investigative process could have been put on hold in March of 2003 while the parties waited for some unknown period of time for the grievor to be free to reveal mitigating circumstances. When I asked counsel for the Union, during his argument on this matter, as a practical matter, what status the grievor might have been given as part of any arrangement to put the investigation and decision processes on hold until the grievor could provide answers on further mitigating circumstances, there was no real response. By March 2003, the Ministry had absolute proof, in the form of Grace Shore?s report and its hundreds of images taken from a small sample of the Internet addresses the grievor had visited, as provided by the Centre for Forensic Science, evidence that he had used his Ministry computer to view a very large quantity of pornography, including teen pornography, child erotica, and child pornography ? again, the real quantity unknown and perhaps unknowable. It also had strong evidence (in the form of (1) the grievor?s 2 April 2002 e-mail to his fellow Conservation Officers, (2) his 1 April 2002 statement to Ed Vervoort, in respect of whether any of the charges were valid, ?some may be; some aren?t? [italics added], (3) the statement taken from the Report of the Children?s Lawyer describing an e-mail (Exhibit 126) in which the grievor stated that he had molested someone, and (4) the fact that at no time during the entire investigation had the grievor ever denied his guilt) that the grievor was guilty of having sexually assaulted and/or interfered with at least one minor. Furthermore, it was clear that the grievor was not going to say anything else. In view of all of these facts, I find that the grievor was accorded procedural fairness. Having thus found, it is unnecessary for me to decide the legal question as to whether or not the grievor was even entitled to procedural fairness. 70 The Grievor?s Cooperation, Forthrightness, and Truthfulness Counsel for the Union argued that, at all times, the grievor was forthright, cooperative, and truthful with the Ministry?s investigation; indeed, he pointed out that the entire case began with the grievor?s virtually admitting his guilt ?to the entire world? in his e-mail of 2 April 2002, the day after his arrest. On one level, the appearance of forthrightness appears to be genuine. However, a closer examination of the evidence reveals that this is not entirely so. The grievor himself seemed to be forthright and truthful in his evidence and truly remorseful, but frankly, it was very hard to tell. I do note an especially troubling inconsistency in the evidence: when asked by Union counsel in his examination-in-chief how many times he assaulted the victim involved in the charge to which he eventually pled guilty, the grievor answered ?six?; on the other hand, Dr. Clyne?s clinical notes (Exhibit 84) say that the number was ?twelve?. I find it improbable that Dr. Clyne mistakenly wrote down the wrong number on such a vital matter or that the grievor could not correctly remember how many times, at least approximately, he had fondled his victim. During the Grace Shore investigation, the grievor tried to explain away his visits to web sites featuring child erotica and child pornography by claiming that he stumbled upon them while surfing more broadly: I have accessed them because you come across them. No [I] do not search for them specifically. I do search for teen sex?.It is illegal to download, to purposely go search for child pornography now. It is not if you are searching and come across the site. There is a difference. In contrast, it is clear from the evidence of the sites actually visited, from the Grace Shore report and from Dr. Clyne?s testimony, that his visiting of teen and child sites was deliberate and intentional. Indeed, she testified that he progressed from adult, to teen, to child pornography. Ms. Shore also said that he had visited some of these sites repeatedly. The grievor turned himself in to the police, but as he himself admitted, he knew that events were by then moving inexorably towards his being charged. There is also Exhibit 126, the grievor?s 15 March 2002 e-mail to his fiancée (set out supra, at p. 37). At one level, this appears to be a mea culpa and a farewell note, and this is how the grievor framed it in his evidence, after reading it aloud at the hearing. However, this was a 41-year-old man writing to his 15-year-old fiancée, and there is another possible interpretation: that it was a tactic, using the prospect of the end of 71 their relationship to induce his fiancée to intercede with her younger sister to stop her from going to the police. I don?t know which interpretation is more correct. However, given that they are not mutually exclusive, and in the context of this very sad case, I?m not confident that the mea culpa/farewell is the only correct interpretation. In the events leading up to his termination, there was a definite adversarial tone to much of the grievor?s correspondence with the Ministry with respect to its possession of the Report of the Office of the Children?s Lawyer. Counsel for the Union argued that this was a symptom of his disability, his ?oppositionality?, but also reflected the fact that the grievor was correct: the Report revealed things that the sealing order subsequently ordered off limits. The problem here is that it is not at all clear that the grievor was correct. At the time of these communications, no sealing order had been issued, and the Ministry had the Report of the Office of the Children?s Lawyer entirely legally. The sealing order was issued only after the grievor himself applied for it on 13 March 2003. When, pursuant to my interim award, the Ministry applied to the Superior Court to have the sealing order lifted, the Court agreed (subject to no minors being identified) and, further, observed that it should not have been issued in the first place. I must say, as well, that the substance and particularly the tone of some of these notes hardly connote a forthright and cooperative approach. While the grievor certainly had a right to defend himself against the criminal charges and perhaps that required him to try to prevent the Ministry from having and using the Report of the Office of the Children?s Lawyer for purposes of his employment situation, I find it particularly ironic that he would accuse the Ministry of creating a ?poisoned work environment? for him, given the particular nature of what he knew he had done. It is very hard to read this correspondence (as set out on pp. 16-18) and conclude that the grievor was trying to be cooperative. As noted earlier, there was a dispute as to what was said by the grievor in front of his house, when it was being searched by the South Simcoe Police Service on May 9, with respect to whether or not he had deleted material from his computers. It will be remembered that Ed Vervoort testified that the grievor had expressed surprise as to how long it took the police to search his house and remarked that he had deleted material from his computers. In his examination-in-chief, the grievor emphatically denied that he had said that he had deleted anything ? he testified that he had said that (given the long delay) ?I could have deleted?? ? 72 and also denied that he had in fact deleted anything. The grievor next testified that he had provided all of his passwords to the police. Counsel for the Union asked him why he had done that, to which the grievor responded, ?I wanted to cooperate?.Counsel then asked him ?why?? The grievor?s answer: ?It?s in my nature. I wanted to show I had nothing to hide.? This is puzzling. On one hand, this answer makes sense and could have been literally true if, in fact, the grievor had cleaned off his computers. But if he had not deleted any material, then it?s much more difficult to understand because it is absolutely clear that he did have a lot to hide. Even someone who, as the grievor testified, had seen nothing wrong at the time with viewing a wide variety of pornography, by this point could hardly have failed to understand the implications of having a large volume and variety of pornography, featuring a particularly large proportion of young teen, child erotica, and at least some child pornography, on his work computer in light of the six criminal charges of sexual assault and sexual interference on minors now hanging over his head. As well, given the criminal charges he was facing, it is hard to imagine that, over a period of five weeks, he would not have understood that his chat-line activity with the alleged victims would be associated with the charges and certainly might be problematic for him. It?s also very hard to credit that he would not have appreciated the implications for discipline or even dismissal arising out of the pornographic material on his Ministry computer in light of the warnings each time employees logged on, and particularly in light of Computergate, which had happened just the previous year, which was well known throughout the Ministry, and in which the grievor himself had been peripherally involved. The question thus arises: how was the Ontario Centre for Forensic Sciences able to retrieve so much pornographic material from his hard drive if the grievor had cleaned off his computer, particularly if he used the ?Mutilator? program, which was specifically designed to eradicate any trace of the material on which it is used? While I don?t know the answer to this question, several possibilities present themselves: (1) the grievor may not have used the Mutilator program correctly; (2) he may not have used it completely ? that is, to erase all of the material; (3) the Mutilator program may not have worked properly; (4) the OCFS has extremely sophisticated technology with which to recapture deleted materials. I note that the evidence made clear that the grievor, while possessing a layman?s competence, was certainly not a computer expert, and so any of (1), (2) and (3) above are more likely than if he had been an expert. In any event, for 73 the reasons set out in the foregoing paragraph, it is exceedingly unlikely that the grievor made no effort to cleanse his Ministry computer in the five weeks between his arrest and May 9. On one hand, we have the grievor?s account of what he said about cleaning off his computers; on the other, we have the testimony of Ed Vervoort and (although it is hearsay) Grace Shore?s account of Allan Sullivan?s corroboration of Mr. Vervoort?s account. In all of the circumstances, particularly those set out earlier in the paragraph, I find that the grievor did say that he had cleaned off his computer and that, indeed, he had done so. Here again, then, it cannot be said that the grievor cooperated in the investigative process. When asked by Union counsel why he had given the police his computer passwords, the grievor replied, ?It?s in my nature. I wanted to show I had nothing to hide.? That is very hard to believe. First of all, as an investigator himself, the grievor would have known that the police would have tools at their disposal to get into his computers with or without his assistance and that refusal to provide the passwords would only emphasize the appearance of guilt. For reasons set out above, I have found that the grievor did try to clean off his hard drives, so the answer, ?It?s in my nature. I wanted to show I had nothing to hide? was true in one way ? he did think he had nothing to hide since he had cleaned off his computer ? but was untrue in another, which goes to the question of his forthrightness and truthfulness. Finally, earlier in direct examination, the grievor was asked what he thought, at the time he was doing it, of looking at child pornography, to which he responded, ?At that time, I was looking at any kind of porn ? there was no distinction.? While that is certainly true in the sense that the grievor viewed a wide variety of types of pornography, an examination of the evidence reveals that it does not appear to be entirely random and unsystematic; a very significant proportion consisted of young-teen pornography, and Dr. Clyne testified that he displayed a clear progression, from adult to teen, from teen to child pornography. The Grievor?s Remorse and Contrition The grievor claimed to be contrite and remorseful over what he had done, and he asked that I provide him a second chance, just as the judge in his criminal case had done. On the other hand, I must say that on several occasions during his evidence, I was struck by what seemed to be ? at 74 its most benign ? highly unrealistic thinking during the course of all of these events. His contrition is argued to have begun with the 2 April 2002 e-mail to his fellow Conservation Officers ? or, indeed, on March 15, with the e-mail to his fiancée. However, there is evidence that, throughout much of the investigation, he may not have been genuinely contrite, that he may not have truly understood the seriousness of his conduct. For example, his thinking on 4 July 2002, when the Ministry brought him back to work (even though only remotely, from his parents? house in another city), that ?they?d done their investigation and were going to bring him back to work? is hard to understand for someone in the grievor?s position, or at least someone who has a true appreciation of the seriousness of his conduct. His anger when, on 23 September 2002, he was advised that he was being suspended again due to the Ministry?s uncovering of new forensic evidence (the computer pornography), given what he knew at that time he had done, together with his statement that he could not understand why the Ministry would bring him back to work only to suspend him again, reflects either highly unrealistic thinking or a tendency to minimize what he had done or an ability to put far too good a face on the situation. That he professed to be shocked and surprised at being discharged on March 13 is very hard to credit, given what he knew he had done, and given what he knew the Ministry had concluded, as set out in Greg Sones?s letter of February 18 (supra, at p. 16). Aside from the unfortunate timing of the last 20-day suspension notice and the instruction to attend a discipline meeting, both of which arrived on March 10,it is hard to imagine how he could not have anticipated that discharge would at least be a reasonable possibility. The grievor?s August 2003 attempt to have the Deputy Minister, three other MNR employees, and Grace Shore all charged with possession of the child pornography taken off hisMinistry computer is so unrealistic as to border on the bizarre and can be logically explained only by anger and a desire for revenge for his termination. It acts as a sort of culmination to the events that began on 1 April 2002 and, together with the other dimensions of the grievor?s actions set out above, presents at the very least an exceedingly uneven case for his remorse and contrition. (Counsel for the Union attributed it to the grievor?s ?oppositionality?, but even accepting that explanation leaves open the question of how the Ministry might regard his judgement.) However, the foregoing observations speak to the period before the grievor?s work with Dr. Clyne: they reflect his thinking before the insights into his own behaviour he claims to have had, so perhaps they should be discounted. On the other hand, I was troubled by a number of the 75 grievor?s answers during his examination-in-chief and cross examination. Asked in direct examination what he thought ?now? (December 2006) of using a Ministry computer to view pornography, the grievor responded, ?It?s easy to say today it?s just not acceptable. It?s wrong of anyone to do it.? Asked then, ?why do you say that?? he replied, ?If I compare myself today to where I was back then, prior to counselling, and having had the opportunity to reflect back and read, I used a piece of equipment for a purpose for which it wasn?t provided.? At the time, this struck a discordant note with me; I had a sense that it sounded, for lack of a better word, contrived. In addition, or perhaps as a cause, there is a more serious problem with this answer: it is not accurate. The problem is notthat he used a piece of equipment for a purpose which it wasn?t provided; employees do that all the time ? for example, checking sports scores and the weather forecast, or doing on-line banking ? without creating a problem and without being disciplined, much less terminated. The problem here was that he used a piece of equipment for a particular purpose specifically and emphatically prohibited by Ministry policy; for a purpose that is, at least in the case of child pornography, prohibited by criminal law and condemned by society. That the grievor would still give such a disingenuous explanation of the wrongfulness of using a Ministry computer to view pornography so far into his hearing, more than three years after his discharge, casts some doubt on the degree to which he truly understood ? or, at least, accepted ? the basis of the Ministry?s decision. It was not the misuseof the computer; it was the natureof the misuse. When he was asked by counsel for the Union what he thought ?now? (December 2006) about his blaming his managers and supervisors for not explicitly ordering him to shut down his chat lines, the grievor replied, ?[I know now] it certainly wasn?t right. Regardless of who may have given me implicit approval, it wasn?t right?.? This answer suggests to me that the grievor was still trying to shift the blame to others even while giving evidence before me. Thus, overall, at the end of his testimony, I was not wholly convinced of the grievor?s true understanding and acceptance of the seriousness of his conduct or of his genuine remorse. This is partially reflected in the fact that Dr. Clyne?s clinical notes make it clear that she had advised the grievor that it was important that he continue with counselling on a one-on-one basis. As it turned out, however, after he stopped his work with Dr. Clyne and moved to a new city, he had two follow-up appointments with her, then in March started participating in group-therapy 76 sessions ? not one-on-one, as she recommended. Given the destructive and self-destructive nature of his problem, surely someone truly serious about continuing the improvement begun with Dr. Clyne would have tried harder to find a counsellor along the lines she recommended. The Fact of Termination as a Mitigating Factor in the Grievor?s Criminal Sentence As noted earlier, counsel for the Employer argued that, since the grievor had already benefitted from losing his job, by virtue of receiving an unusually lenient conditional sentence in criminal court in part because he had been discharged, I should not upset that. For his part, counsel for the Union argued that I should ignore that fact and, essentially, stick to my mandate, which was simply to decide whether or not the Ministry had just cause to discharge the grievor. I agree with counsel for the Union. It is not appropriate for me to go beyond the question of whether or not, given what the grievor did and its actual and potential impact on the Employer, the Employer had just cause to discharge him. The Issue of an Anonymous Award As noted, counsel for the Union asked that I make this award anonymous, identifying neither the grievor nor the Ministry. His argument has already been set out, at pp. 55-56 and need not be elaborated upon here. For his part, counsel for the Ministry objected, arguing that anonymity is inconsistent with the principle that the arbitration process is by tradition public and is also inconsistent with the interests of justice and GSB jurisprudence. He also pointed out that the various fora in which this case has played out ? the criminal and family courts, as well as this arbitration ? are already part of the public record. Finally, counsel for the Employer argued that the public had a right to know where justice took these parties, and towards that end, he requested that the judicial decision lifting the sealing order be appended to this award. I have thought carefully about the parties? arguments on this point and, as noted at page 2, have decided not to identify the grievor. In balancing the public?s right to know against the interests of the grievor, I conclude that making the award anonymous in respect of the grievor?s name will honour the public?s right to know while protecting the grievor ? to the extent that that is possible, at least ? from any prejudicial consequences of the evidence necessarily set out in this award, which is a public document. Knowing the grievor?s name adds nothing to the public?s 77 understanding of this case. I am also sensitive to the possible impact on the grievor?s children of having this award associated with his name or theirs. Unfortunately, it was not possible to avoid identifying the ministry involved because that information forms an important part of the context for this case. The nature of the grievor?s work, for example, was a key element in both parties? theory of the case, and the nature of ESSU?s mandate and its connections to other law-enforcement agencies also were important factors in the overall context. Did the Employer Have Just Cause to Discharge the Grievor? As of 13 March 2003, the date of the grievor?s discharge, the Employer had clear and unequivocal evidence of the fact that the grievor had used his Ministry computer to view a very large amount and great variety of pornography, including teen and child pornography and child erotica. As noted, young-teen pornography was a significant subset of the total sample reviewed. Worse, the Employer had concluded ? correctly ? that the grievor had committed sexual assault against at least one minor victim and had good grounds for thinking that it might be more than one. By this point, with the exception of his working remotely from his parents? home from July 4 to September 23, the grievor had been on suspension with pay since 13 May 2002, and there was still no indication as to when the grievor would go to trial. Given the existence of the grievor?s two e-mails, of 2 April 2002, to other Conservation Officers, and the one alluded to in the Report of the Office of the Children?s Lawyer, subsequently acquired by the Ministry and entered as Exhibit 126, the grievor?s answer to Mr. Vervoort that ?some may be??, and his failure to ever deny his guilt, the Ministry could be reasonably certain that the grievor would be found guilty of at least one of the criminal charges. Thus, the Ministry was faced with what was likely to be a long delay until the criminal charges were disposed of, after which there was a significant probability that the grievor would receive a prison sentence. The grievor was a Conservation Officer who, as part of his duties, wore a uniform, possessed firearms, and had powers of arrest. By the very nature of his job, he often worked independently 78 but he also supervised other Conservation Officers. He was part of a service that had both institutionalized and informal linkages with other law-enforcement agencies across a variety of jurisdictions. The Ministry had concluded ? again, correctly, in my view ? that its reputation amongst both the public and the community of law-enforcement agencies to which it belonged would be damaged if it did not discharge the grievor. I have concluded that its internal reputation ? what its own employees thought of it ? also might have been damaged. I have also found that, given the grievor?s sexual assault on a minor and his use ? and especially hiscontinued use of his Ministry computer to access pornography, even after the unmistakable ?wakeup call? of Computergate in May 2001? the Ministry was correct in concluding that this breach of trust and conduct were so egregious that it could not have sufficient confidence in either his judgment or control. In my opinion, that conclusion was corroborated in August of 2003, when the grievor attempted to have the Deputy Minister, three other MNR employees, and Grace Shore charged with possession of child pornography. Balanced against these considerations are Dr. Clyne?s hypothesis and the grievor?s record of service. As noted supra, I was not convinced by Dr. Clyne?s hypothesis because the evidence showed that the grievor did not in fact carry out much in the way of undercover work, particularly after 1998, and that the undercover work he did carry out was not of the same intense and continuing character as that which featured in Dr. Girodo?s work; because I was not convinced that the grievor was completely truthful with Dr. Clyne; and because of the many and significant qualifiers that Dr. Clyne herself attached to her picture of the grievor as being on the road to rehabilitation. A number of his answers in his own testimony-in-chief were troubling in this latter respect: for example, his explanation of what was wrong with accessing pornography on a Ministry computer ? that he had used Ministry equipment ?for a purpose for which it wasn?t provided? ? betrays a lack of awareness and understanding of the reason for his being terminated. And even setting aside all of these concerns and fully accepting the Clyne hypothesis, the grievor?s behaviour may be partially explained but it cannot be excused; he could have controlled himself. The grievor had 22 years with the Ontario government which, by any measure, is a significant length of service. His record was clean and his work of high quality. Unfortunately for the grievor, however, no amount of service is sufficient to overcome the consequences of his actions: 79 damage to the Employer?s external and internal reputations and a complete loss of Employer confidence in his judgment and control could not be offset even by long and commendable service. Finally, this is not a case where an arbitrator can fault the employer and vacate the discharge because of a lack of progressive discipline. The concept of progressive discipline is the foundation stone for the remedial purpose of workplace discipline: discipline ought to be applied in progressively more serious forms in order to make clear to an employee that certain behaviour is unacceptable and that it can, if not stopped, ultimately lead to discharge; it is, in short, a set of lessons. No lessons ought to have been needed here. In our society, one form of misconduct engaged in by the grievor is virtually universally understood to be absolutely unacceptable. Given that I have found that the Ministry?s reputation would have been damaged had it not discharged the grievor, it follows that the public would never have understood reinstating the grievor simply on the basis that progressive discipline had not been followed. It is not even clear that there was no progressive discipline, in view of the fact that he received a verbal warning at the time of Computergate, which was a far less serious infraction than his later misuse of his Ministry computer. For all of the foregoing reasons, I find that the Employer did have just cause to dismiss the grievor on 13 March 2003. Accordingly, the grievance must fail. I wish to thank all counsel involved for their efforts in this very long, difficult, and unhappy case. th Dated at Toronto, this 11 day of June, 2008. R. L. Jackson Vice Chair