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CRIMINAL
LAW ISSUES
1. DOES A
MEMBER HAVE TO ANSWER QUESTIONS ASKED BY EITHER THE EMPLOYER OR THE POLICE?
- EMPLOYER:
In general, there is some degree of obligation to answer
the employer’s questions about alleged misconduct. However, the extent of the
obligation is not clear. The employee risks a negative finding if allegations are
unanswered, but where there are either criminal charges, or a possibility of the same,
declining to answer may still be the safer course of conduct. An adverse finding
may be successfully addressed by a subsequent grievance, while unfortunate answers, made
at an early stage before all the facts are known, may be incapable of remedy.
Please note, however, that the situation is even more
problematic if the investigator is an inspector under section 22 of the Ministry of
Correctional Services Act. Non-co-operation with an inspector may be cause for
dismissal. If a member does decide to co-operate, the interview should start with a
statement by the member that participation is not voluntary, but is under
compulsion, due to threat of sanctions. (And please see "(C) ALL SITUATIONS",
below.)
If you have any questions in this area, please do not
hesitate to contact your local and/or staff rep. The assistance of OPSEU’s criminal
law consultant can be obtained where necessary.
POLICE: Where the police are
investigating, there is no doubt that the member has the right to remain silent, and to
contact legal counsel for further advice. Employees can be reminded they have these
rights, but be careful. Non-lawyers can be charged with obstructing justice for telling
the member to not answer questions. It is up to members to choose whether they wish to
remain silent.
ALL SITUATIONS: If a member has
decided to co-operate in an interview with either the employer or the police, negotiate
the following safeguards in advance of any questions being answered:
(i) The interview should not be audio or video
taped, but, rather, conducted with the interviewer writing out (or typing, if a computer
is utilized) the questions and answers verbatim.
(ii) It should be agreed that the member will be given
an opportunity, at the end of the interview, to read over the questions and answers, to
make any necessary changes, and to sign the statement to verify its accuracy. The member
should be given a copy of the statement before the interviewer leaves. (If the interview
was recorded on a computer, and there is no printer available, the interviewer should
undertake to provide a copy in a very short and specified time.)
If you have any questions in this area, please do not
hesitate to contact your local and/or staff rep. The assistance of OPSEU’s criminal
law consultant can be obtained where necessary.
2. MEMBER ARRESTED BY POLICE – CONDITIONS OF RELEASE TO
INCLUDE NON-ATTENDANCE AT WORKPLACE AND/OR NON-ASSOCIATION WITH STAFF OR CLIENTS
Should you hear of such proposed conditions of release before
a member agrees to them, BE WARY. Such conditions may create an inherent inability to
return to the workplace. Rather than simply agreeing to such terms, the member should
realize there is often room for useful negotiation of the conditions of release. The short
term relief that comes with release from custody may have unduly negative effects.
If a member is subject to such bail conditions,
it may also preclude him or her from attending at the workplace for disciplinary hearings.
Before the member attends such a hearing at the workplace, the term would have to be
modified or deleted by the court. Failure to do so in advance could result in an
additional criminal charge of non-compliance with a term of bail and/or the member being
re-arrested.
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