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Terms of Use have been amended effective October 6, 2019. Make sure you are aware of the new rules! Please visit this thread for details: https://www.mibuzzboard.com/phpBB3/view ... 16&t=48619
You Be The Judge
You Be The Judge
Grievor - Male,age 39
Job Title - Guard
Seniority - 7 years
Rate of Pay - $45/hr
Nature of Grievance - Improper Discharge
Remedy Sought - Reinstatement with full monetary compensation and no loss of Seniority
The Employer, Corrections Canada, operates all Federal Prisons in Canada. The maximum security facility, where the grievor was employed is in Eastern Ontario.
In all maximum Security prisons, inmates are not permitted to have cell phones. The administration at this facility had reason to suspect that some inmates did, in fact, have phones.
They set up a radio surveillance operation to intercept their calls.
Prison inmates have no right to privacy in their communications. So no court order or warrant was needed to conduct the surveillance.
During the course of the surveillance they intercepted communications between inmates and one of the prison guards. They learned that the guard was trafficking in cell phones and smuggling them in to the prisoners .
They identified the guard and fired him immediately.
The Union filed a grievance alleging improper discharge. The Union argued that the Employer could not rely on evidence obtained against the grievor by radio surveillance because the evidence had been obtained without proper legal authority.
Does the grievance succeed?
Job Title - Guard
Seniority - 7 years
Rate of Pay - $45/hr
Nature of Grievance - Improper Discharge
Remedy Sought - Reinstatement with full monetary compensation and no loss of Seniority
The Employer, Corrections Canada, operates all Federal Prisons in Canada. The maximum security facility, where the grievor was employed is in Eastern Ontario.
In all maximum Security prisons, inmates are not permitted to have cell phones. The administration at this facility had reason to suspect that some inmates did, in fact, have phones.
They set up a radio surveillance operation to intercept their calls.
Prison inmates have no right to privacy in their communications. So no court order or warrant was needed to conduct the surveillance.
During the course of the surveillance they intercepted communications between inmates and one of the prison guards. They learned that the guard was trafficking in cell phones and smuggling them in to the prisoners .
They identified the guard and fired him immediately.
The Union filed a grievance alleging improper discharge. The Union argued that the Employer could not rely on evidence obtained against the grievor by radio surveillance because the evidence had been obtained without proper legal authority.
Does the grievance succeed?
Re: You Be The Judge
Depends. Do guards give up their right to privacy on prison grounds in Canada too?
New York and Chicago were all in with respect to their sanctuary status — until they were hit with the challenge of actually providing sanctuary. In other words, typical liberal hypocrisy.
Re: You Be The Judge
I'm hesitant to answer without waiting for, like Paul Harvey says, the rest of the story.
With Turkey's arb stories, he often waits a couple of days, and then adds another tidblt to the tale which changes what I would of answered.
Based upon what he has told us so far, I'm curious if the guard was formally told the inmates can't have cells. Yes, the inmates have no right to privacy in their communications.
But that's the inmates. We can all assume, and we would be correct, that the guard knew doggone well the inmates are not allowed to have cells.
I don't think the union can argue the evidence had been obtained without proper legal authority, based upon what Turkey has told us so far.
But there's still wiggle room if it's not an actual written condition of employment to not give the inmates a cell.
With Turkey's arb stories, he often waits a couple of days, and then adds another tidblt to the tale which changes what I would of answered.
Based upon what he has told us so far, I'm curious if the guard was formally told the inmates can't have cells. Yes, the inmates have no right to privacy in their communications.
But that's the inmates. We can all assume, and we would be correct, that the guard knew doggone well the inmates are not allowed to have cells.
I don't think the union can argue the evidence had been obtained without proper legal authority, based upon what Turkey has told us so far.
But there's still wiggle room if it's not an actual written condition of employment to not give the inmates a cell.
- audiophile
- Posts: 9031
- Joined: Sat Dec 04, 2004 9:21 pm
- Location: Between 88 and 108 MHz.
Re: You Be The Judge
I say he stays fired.
A maximum security facility - I doubt there is a "I didn't know" clause.
A maximum security facility - I doubt there is a "I didn't know" clause.
Ask not what your country can do FOR you; ask what they are about to do TO YOU!!
Re: You Be The Judge
In the good old US of A, it wouldn't matter if he knew, didn't know, or willfully broke the law, if the evidence was obtained in an illegal manner.audiophile wrote: ↑Mon Nov 01, 2021 12:24 pmI say he stays fired.
A maximum security facility - I doubt there is a "I didn't know" clause.
New York and Chicago were all in with respect to their sanctuary status — until they were hit with the challenge of actually providing sanctuary. In other words, typical liberal hypocrisy.
- audiophile
- Posts: 9031
- Joined: Sat Dec 04, 2004 9:21 pm
- Location: Between 88 and 108 MHz.
Re: You Be The Judge
Canada protections are weaker, and once it is transmitted over the air its no longer considered private.
Or at least there is lot of debate.
Or at least there is lot of debate.
Ask not what your country can do FOR you; ask what they are about to do TO YOU!!
Re: You Be The Judge
I would say that by communicating with people whom he knew had no right to privacy that he knowingly and willingly waived any right to privacy that he may have had. As such, I would say the grievance fails.
Re: You Be The Judge
audiophile wrote: ↑Mon Nov 01, 2021 12:24 pmI say he stays fired.
A maximum security facility - I doubt there is a "I didn't know" clause.
. This wasn't my Union. I just read about it in a newsletter our legal department sends out.
The Union didn't use the "I didn't know" defense. The Union just argued that the Employers telephone recordings were inadmissible as evidence.
For its part, the Employer argued that it only needs the consent of one of the parties to record a telephone conversation. They argued that, since an inmate can not withhold his consent, they had their implied consent
Last edited by Turkeytop on Mon Nov 01, 2021 10:20 pm, edited 1 time in total.
Re: You Be The Judge
That, in my opinion, is a losing argument. Consent is not a passive thing; it is an active one and as such requires a person to actively give permission to do something. The fact that an inmate does not have the protection of consent is irrelevant. The bottom line is that no party in a position to grant consent actually granted consent.
That said, I still think my argument stands: that the guard waived his consent protection by talking to someone who he knew could be legally monitored without such consent.
Re: You Be The Judge
If the Employer can convince the Arbitrator it had the consent of one of the parties, whether or not the other party consented is irrelevant.
Re: You Be The Judge
So this has really gone viral. No relies in the past four days.
I know you're all dying to know how it came out.
The Arbitrator accepted the Union's argument.. In his award he stated that implied consent is not the same as affirmed, positive consent. Therefore he accepted the Union's position that the recording had been made without the consent of either party and was, therefore, inadmissible as evidence.
Without that evidence, the employer had no case at all. He ordered the grievor reinstated with full redress.
That was the end of the story.
But I've heard that the Employer does not want the guy back at all and is in negotiations with the Union to reach a settlement whereby the person would resign in exchange for an amount of money to be paid out by Corrections Canada.
I know you're all dying to know how it came out.
The Arbitrator accepted the Union's argument.. In his award he stated that implied consent is not the same as affirmed, positive consent. Therefore he accepted the Union's position that the recording had been made without the consent of either party and was, therefore, inadmissible as evidence.
Without that evidence, the employer had no case at all. He ordered the grievor reinstated with full redress.
That was the end of the story.
But I've heard that the Employer does not want the guy back at all and is in negotiations with the Union to reach a settlement whereby the person would resign in exchange for an amount of money to be paid out by Corrections Canada.