Suspension during investigation wasn’t disciplinary: Court

Court says employer hadn't concluded investigation so suspension was not the end result

The federal court has ruled a British Columbia correctional officer’s suspension was incorrectly classified as disciplinary and his appeal has been upheld.

Balkar Singh Basra worked at the Matsqui Institution, a medium security facility in British Columbia. In the spring of 2006, Basra met someone through a chat line and the second time they met, he gave her drinks which made her pass out. She awoke in his bed the next morning missing her clothes, unable to remember what happened.

When questioned by police, Basra initially gave them a false name and denied knowing the woman. A DNA test later revealed he had been with her and he was charged with sexual assault.

The Correctional Service of Canada (CSC) launched an investigation, as being charged with sexual assault contravened its standard of professional conduct. On April 3, 2006, Basra was notified he was suspended indefinitely without pay pending the completion of the investigation.

During the investigation, the warden conducted periodic reviews of Basra’s suspension, but the suspension continued.

Basra filed a grievance, claiming the suspension was disciplinary and shouldn’t be indefinite. CSC said the suspension was an “administrative measure” and it hadn’t yet decided what disciplinary measures to take.

The adjudicator ruled CSC wasn’t justified in continuing the suspension without pay, ruling one month was long enough to investigate and after that point the suspension became disciplinary. CSC was ordered to pay Basra retroactively to May 3, 2006, one month after his suspension began.

On CSC’s appeal, the Federal Court found the suspension was administrative and not disciplinary. Though Basra was suspended without pay during a disciplinary investigation, the court found the suspension itself was not intended to punish him. In fact, it found the adjudicator’s only reason for finding the suspension was disciplinary was because of the length of time the investigation was taking, making it “disciplinary by default.”

The court also found the adjudicator didn’t consider the fact Basra had not only been charged with sexual assault, but had also allegedly misled the police and provided them with false information. This complicated the investigation and made his misconduct more serious than would warrant a one-month suspension.

“It appears the adjudicator considered the lack of charges of obstruction of justice or mischief to be determinative on the question of misleading the police,” the court said. “However, (Basra) had told police that he did not know the complainant, while a DNA test demonstrated the opposite. This suggests (Basra) actually provided the police with false information.”

The court allowed the appeal and ordered the case to be heard by another adjudicator. See Canada (Attorney General) v. Basra, 2008 CarswellNat 1500 (F.C.).

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