Government Actor – Private Employer is Complicit – Charter Right

It would be expected that for the refusal to answer a question during the investigation to be successfully maintained, the employee must show that the investigation was, in essence, one which held the potential of penal consequences. This situation could theoretically arise, should for example, the employer be complicit in sharing information so acquired, with the police.

Such an argument was made in an arbitration hearing also related to the same Correctional Services Act in Keating v Ontario. The grievor had been charged with criminal harassment due to alleged conduct external to his employment relationship. Two years later he was acquitted. The issue before the Public Service Grievance Board was the propriety of the grievor’s refusal to answer questions beyond the basic fact of the criminal charge.

The operative statute allowed for the sharing of information from the Ministry with the police by section 10. With this in hand, the grievor’s counsel argued that the Ministry investigator was an agent of the police.

This argument was rejected as the arbitrator concluded that the evidence did not show that the purpose of the investigation was to aid a criminal investigation.

One would expect that had such affirmative evidence been available, a contrary conclusion would have followed.

The arbitrator did observe that particularly in this context, given the legislative path referenced, that appropriate assurances of confidentiality should have been forthcoming from the Ministry:

  As noted above, shortly before the interview with Mr. Keating ended, the inspector asked the grievor about the nature of his relationship with Ms. S, at which point Mr. Camman asked the investigator how the question related to the jail, but the investigator did not answer.  There is no suggestion that the inspector was obliged to answer, and just as counsel do not always want to shed light on the ultimate goal of a question in cross-examination, in front of a witness, there may be sound investigative reasons to not disclose such information.  Nonetheless, this may have been a missed opportunity to clarify on the record that the purpose of the investigation was not to further the criminal investigation, or to narrow the question in a way which made it clearer that the goal was to assess any risk to the institution rather than to conduct an open-ended inquiry into the nature and history of the grievor’s relationship with Ms. S., for instance.  This is particularly so, since the grievor had already made clear that he did not trust that his interview would not show up in court during the criminal trial.  There is no doubt that an employee who may be aware of both the potential flow of information to the police, and of the fact that job loss is a possible result for failing to provide information required for a s. 22 investigation, is in a very difficult position. It might well enhance the chances that an employee and his counsel would worry less about self-incrimination if some assurances were given. There is nothing on the record which suggests that any effort was made to assist the grievor or his counsel in providing the information sought without fear of compromise of his right not to incriminate himself in regards to the criminal charges.

The decision continued to state that where such a co-operative venture exists between the employer and the police, there is an affirmative duty to make known to the employee that the investigation has now taken on the character of an inquiry with penal consequences and hence has evolved into one raising Charter issues.

It is in this context that the accused person may avail himself of Charter protections:

  Counsel for the grievor asserted that the police would expect the investigation report in return for having furnished incident reports concerning the grievor to the Ministry, and that having the investigation report would assist the Crown and the police in anticipating defences. There was no evidence one way or the other about the circumstances under which information is shared by the Ministry with the police.  However, if for instance, the fact is that the Ministry does not share information from employee statements taken under s.22 with the police once a criminal investigation has started, it is possible that letting someone in the grievor’s position know that fact would make it more likely the employee would answer more of the inspector’s questions.  And, if it ever were the case that the inspector was acting as a criminal investigator, on behalf of the police, for instance, the case law stands for the proposition that full Charter rights apply, and that the inspector would be required to give the appropriate warnings, making it clear that the investigation was no longer a s. 22 investigation.

It would be in such unusual circumstances that the Charter right against self-incrimination and other Charter protections such as the right to counsel and the need for a warning before a confession is made would follow.