Trainers claimed they didn't know policy applied to them; language didn't name trainers as prohibited from carrying sidearms outside workplace
An adjudicator has quashed five-day suspensions given to three Canada Border Services Agency (CBSA) trainers for wearing their full uniforms and firearms to a restaurant when they went out to dinner.
Cathy Christenson, John Jacques and Bruce Machacynski were use-of-force and firearms instructors for CBSA based in Ottawa. They were among the first group of such trainers for the CBSA. As part of their training by the RCMP, they were instructed on a policy on the wearing of protective and defensive equipment that stated officers leaving a point of entry or CBSA office for personal business, meal breaks or rest period were required to “remove their defensive equipment and properly store it.” A second version of the policy in 2007 indicated it applied to “all border services officers and inland enforcement officers, investigators, intelligence officers and members of management who are issued such equipment.” Exceptions had to be authorized by management.
In March 2008, the three trainers were assigned to conduct a duty firearm practice session for border service officers in Windsor, to be held at the Windsor police range. On March 28, at the end of a training session, all three went out to dinner at a restaurant and bar wearing their full uniforms and sidearms.
At the restaurant, they ran into the chief of enforcement operations for the Windsor Tunnel border crossing, who came up to them and said they were violating CBSA’s firearm policy. Jacques said there was no such policy enforced back in Ottawa — where they had been allowed to leave the office for short trips and errands with their sidearms — and said they didn’t have a place to store their weapons at the police range. He claimed no-one had given them any directive not to wear their firearms.
The training superintendent learned of the incident and asked Christenson who gave them authorization to wear their firearms on their dinner break. Christenson replied that they had been given authorization but didn’t say who gave it. The superintendent contacted other management members but none claimed to have authorized them and there was no written authorization.
The three trainers were suspended for five days each. Though they claimed to have acted in good faith, expressed regret and said they thought the policy didn’t apply to them because they were trainers, not officers, CBSA felt they had “subjected yourself and the organization to unnecessary safety risks as well as tainting the image of CBSA.”
The adjudicator noted employers have the right to establish rules and policies, but they must be clear. He found CBSA’s firearms policy was not. The policy didn’t include trainers in its listing of to whom it applied, nor did it mention any other group into which trainers would fall, so there was confusion as to whether they were subject to it — Jacques told the superintendent in the restaurant he didn’t think they were violating the policy. The wording of the policy didn’t indicate the list was “non-exhaustive, and it cannot be inferred that trainers are included,” said the adjudicator.
The trainers’ belief they weren’t subject to the policy was supported by the fact they were allowed to go out for brief errands with their firearms in Ottawa, said the adjudicator. In addition, they had no directives from management in Windsor that it was any different there.
The adjudicator found that while it may have been intended for the policy to apply to all CBSA personnel who carried firearms, it was not the case in reality. Also, the CBSA code of conduct defined misconduct as “a wilful action or inaction” by an employee, though it was established that the three trainers did not act in bad faith or knowingly breach the policy. Finally, there was no evidence public perceptions were affected by the incident, said the adjudicator.
