A government department had just cause to dismiss an employee whose personal associations raised concerns and potentially endangered other government agents, a labour adjudicator has ruled.
Andre Nicolas was a fishery officer with the Department of Fisheries and Oceans (DFO) in Quebec’s Magdalen Islands, a position he started in 1997. His job involved inspecting boats, enforcing fisheries legislation, and working with police — both the Quebec provincial force and the RCMP — on investigations and arrests. Because fishery officers were peace officers who sometimes dealt with violent criminals, they carried firearms. They also shared information with police when co-operating on investigations.
The Magdalen Islands are a small community where “everyone there knows everyone else,” sometimes making things complicated for fishery officers. The DFO asked its fishery officers not to place themselves in situations where they would have to conduct surveillance on or intervene with families or friends and to maintain some distance from residents. They had a code of conduct which stipulated officers must conduct themselves “in an exemplary manner,” both during and outside work hours.
However, since coming to the islands in 1997, Nicolas had accumulated a number of friends and acquaintances the DFO knew were connected to poaching and drug trafficking. In 2006, one of these individuals was subject to a surveillance operation that had to be aborted because of Nicolas’ involvement. The subject was suspected of poaching and was observed snorkeling, but Nicolas made himself visible on the shore and the subject came out of the water without any fish. Nicolas claimed his radio wasn’t working when a co-worker tried to tell him he was in plain view for the subject.
After the incident, other fishery officers became suspicious that Nicolas was providing information to friends so they wouldn’t be caught poaching. Nicolas was told if he found himself in a conflict of interest again, he was to notify his supervisor, as officers would be put at risk if information on investigations was leaked.
In March 2008, a Quebec provincial police officer informed the DFO he didn’t trust Nicolas and suspected he was feeding information to poachers and drug traffickers. The DFO didn’t say anything to Nicolas because it believed it didn’t have all the information. Management agreed to wait until they had more evidence before acting, though Nicolas’ supervisor tried to share as little information as possible with him. However, this made it difficult to work, since there was only a small number of fishery officers on the islands.
In September 2009, the Quebec provincial police informed the DFO that Nicolas had stashed illegal material in his home for a drug trafficker two years earlier and he had been seen in June 2009 associating with a known drug trafficker. Another report the following month said Nicolas was a drug user and used codes to tip off poachers and drug traffickers regarding DFO activities.
Finally, in October 2009, an investigation into Nicolas’ conduct was launched. Nicolas was suspended without pay for the duration of the investigation.
The investigation reached the conclusion that Nicolas had given information to poachers and drug traffickers, though no-one directly saw him doing it.
Nicolas reiterated that, in the 2006 incident, his radio was not working properly. He also said he didn’t know it was his friend in the water. He admitted knowing the individual, but denied passing information to him, though he admitted he shouldn’t have placed himself in plain view. He was aware his friend was a poacher, but said if he caught him he would “knock his head off.” He also admitted to growing and smoking his own marijuana in order to relieve pain from a past injury.
Nicolas also acknowledged knowing other acquaintances who were identified as poachers or drug traffickers, but denied sharing information with them.
Bond of trust broken
The DFO decided to terminate Nicolas’ employment because he had broken the bond of trust it needed to have with its officers. Because he admitted to using drugs and associating with criminals, he had lost credibility with other officers and the police, and harmed the DFO’s reputation.
On March 29, 2010, Nicolas was formally dismissed for communicating confidential information to individuals outside the department, possessing and using illicit drugs, associating with drug traffickers and fishermen being investigated by the DFO, endangering other officers and using his powers as a fishery officer inappropriately.
The adjudicator found Nicolas’ explanation of the 2006 incident lacked credibility. It was unlikely an experienced fishery officer would accidentally put himself in plain view of a suspect and his claim the radio wasn’t working lacked credibility.
The adjudicator also found the police reports that Nicolas was passing information were credible, as they were produced by reliable police officers who would have no reason to lie. In addition, Nicolas acknowledged knowing the individuals in question and also admitted to using drugs. Though there was no evidence Nicolas used codes to warn offenders of operations, it was likely he passed some information to his acquaintances that affected investigations, said the adjudicator.
The adjudicator also agreed that by his actions, Nicolas compromised his co-workers’ safety and used his powers inappropriately. The disclosure of any information about operations exposed officers to ambush and gave the offenders an advantage over them. It also eroded the confidence the police had in the DFO and jeopardized their collaboration, said the adjudicator.
The adjudicator noted the DFO did nothing in the wake of the 2006 incident and, because too much time passed, that incident couldn’t be held against Nicolas. However, the 2008 and 2009 police reports prompted investigations — it was reasonable for the DFO to wait for more evidence in 2008 — and were enough to provide just cause for dismissal, said the adjudicator.“I note that (Nicolas) does not seem to take seriously the fact that as a fishery officer responsible for law enforcement, he used illegal drugs and sought the company of individuals who poached or were connected with the drug world,” said the adjudicator. See Nicolas c. Administrateur general (minstère des Pêches et des Océans), 2014 CarswellNat 1134 (Can. Pub. Service Lab. Rel. Bd.).