Pound v. iWave, 2017 PECA 17, a recent decision by the Prince Edward Island Court of Appeal, is a cautionary tale for employers about the legal issues that may arise when standard form employment policies are adopted without management fully understanding their obligations to employees in practice.read more
New Brunswick Police Officer Terminated for Misconduct
In the recent unreported decision of the New Brunswick Police Commission and Constable Jeff Smiley, dated December 2, 2015, an arbitrator appointed under the New Brunswick Police Act imposed the penalty of dismissal of a New Brunswick police officer as a result of his misconduct. While police officers in New Brunswick have been disciplined before for misconduct, this is the first time an arbitrator under the Police Act has imposed dismissal.
Constable Smiley was in a common law relationship. He moved into his common law partner’s home in 2012. However, by February 2014, the relationship had broken down. On February 26, 2014, Constable Smiley’s partner met with police and gave a detailed statement revealing, amongst other things, that Constable Smiley had assaulted her on multiple occasions over the course of their relationship. Police arrested Constable Smiley for assault. He was released on a number of conditions, one of which was an undertaking to surrender all firearms in his possession.
Constable Smiley did not turn over any firearms; rather, he explained to police that his firearms were in Nova Scotia and were not in his possession. This was untrue. In the meantime, Constable Smiley asked a close friend and fellow police officer to store his firearms temporarily, explaining that he and his common law partner had ended their relationship and he could no longer keep the firearms in her home. Constable Smiley did not disclose to his close friend and fellow police officer that he was subject to an undertaking to surrender all firearms in his possession. Furthermore, Constable Smiley asked his close friend and fellow police officer that, if she was asked by anyone if she saw or had any knowledge of him being in possession of firearms, to state she never saw the firearms. Constable Smiley’s close friend and fellow police officer declined to do so.
Constable Smiley was re-arrested for breaking the undertaking not to possess firearms. In and around this time, it was discovered that his licence to possess firearms had expired approximately three (3) months earlier.
Constable Smiley was charged with discreditable conduct under the Code of Professional Conduct under the Police Act.
The arbitrator found that Constable Smiley engaged in four counts of discreditable conduct under the Police Act:
- committing domestic violence against his common law partner. This finding was made despite Constable Smiley’s common law partner’s evidence at the hearing wherein she recanted her complaint of domestic violence;
- counselling a fellow police officer not to disclose that Constable Smiley was in possession of firearms while bound by an Undertaking to turn over any firearms in his possession;
- possession of a firearm during the time when his licence to possess such firearms was expired; and
- possession of a firearm in breach of the undertaking to surrender all firearms in his possession.
The arbitrator noted that the Code of Professional Conduct imposed a requirement that police officers not bring discredit upon the police force. He also commented that previous police disciplinary decisions emphasized that, given the level of trust and authority enjoyed by police officers, which was essential to the position they occupy in society, police officers must act with integrity at all times. The arbitrator concluded that, in light of Constable Smiley’s misconduct, the appropriate penalty was immediate dismissal.