AH - 149
IN THE MATTER OF AN ARBITRATION
BETWEEN:
CANADIAN PACIFIC LTD.
(the “Company”)
AND
CANADIAN PACIFIC POLICE ASSOCIATION
(the “Union”)
IN THE MATTER OF THE GRIEVANCE OF ROGER A. SAUNDERS
SOLE ARBITRATOR: HARVEY FRUMKIN
There appeared on behalf of the Company
Mark Shannon
And on behalf of the Union:
Helene Lebel
Hearings were
held at Montreal, Quebec, on the 21st and 26th day of
August, 1985.
AWARD
The undersigned, Harvey Frumkin, was by agreement of the parties hereto appointed sole Arbitrator to hear and decide the above grievances. Hearings were held at Montreal on August 21 and August 26, 1985 with argument being presented on September 12, 1985. Me Helene Lebel acted for the Association and Me Mark Shannon represented the Company. After duly considering the arguments of both sides, studying the various exhibits submitted, the evidence taken at the hearing and the Collective Agreement, the Tribunal submits its decision.
The grievances before the Tribunal were referred to arbitration following the decision of the Chief of the Department of Investigation of the Company at step 3 of the grievance procedure taken on February 12, 1985 to confirm the dismissal of the Grievor as police constable on January 21, 1985 in connection with an allegation that the grievor had submitted false reports concerning circumstances of the arrest of a certain individual at the Royal York Hotel in Toronto on April 23, 1984. At issue as well is the right of the company to have suspended the Grievor without pay on September 5, 1984 pending a disciplinary hearing upon the allegation. The decision under review read as follows:
“MONTREAL, February 12, 1985
Mr. M.J. Doucette
President
CP Police Association
601 Duncan Drive
Greenfield Park, Quebec
J4V 1E6
Dear Mr. Doucette:
This is to acknowledge receipt of your step #3 Grievance under date of January 26, 1985 pertaining to the dismissal of Constable R.A. Saunders on January 21, 1985.
I have reviewed the evidence taken at the October 11, 1985 and January 14, 1985 disciplinary Hearings of Constable R.A. Saunders regarding an allegation that he falsified records concerning circumstances giving rise to the arrest and incarceration of a citizen for a criminal offense that is said to have occurred in the Royal York Hotel, Toronto, on or about 1550 hours, April 23, 1984.
On that date, the citizen was arrested by Constable Saunders on a charge of sexual assault. The circumstances at the time, according to Constable Saunders, were that while he was in the men’s washroom located on the Main Mezzanine floor of the Royal York Hotel, the accused unzipped the officer’s trouser fly and reached into his pants with one hand and touched the officer’s penis.
Constable Saunders then escorted the assailant to the Hotel Security Office and entered the circumstances giving rise to the arrest into his Police Notebook. He then committed these circumstances to a typewritten report directed to the CP Police, Toronto, under date of April 23, 1984 and appended his signature to the document.
Constable Saunders then telephoned the Metropolitan Toronto City Police and requested they attend at the Royal York Hotel Security Office to take custody of the prisoner from Constable Saunders. At the time the prisoner as turned over to the Metropolitan Toronto City Police, Constable Saunders gave the officer a copy of his April 23rd, typewritten report showing the accused had sexually assaulted him by unzipping his trouser and touching his penis. The accused was subsequently charged with sexual assault.
Constable Saunders then submitted a typewritten Security Department Report to management of the Royal York Hotel outlining the foregoing circumstances which supported the charge of sexual assault.
On or about May 7th, 1984, the circumstances of the arrest were reviewed by the Crown Prosecutor and he concluded the citizen should have been arrested on a charge of committing an indecent act, when he began to masturbate in the presence of Constable Saunders and, had this action taken place, the sexual assault involving Saunders’ penis would not have occurred. The original charge of sexual assault was, therefore, withdrawn and a reduced charge of committing an indecent act laid against the citizen.
Evidence shows that at some point in time prior to constable Saunders’ appearance in court, he amended the April 23rd, 1984 entry in his Police Notebook. This amendment was avowedly made because Constable Saunders erred in stating that the accused had unzipped the officer’s trousers and touched his penis.
Constable Saunders did not see his way clear to advise Department Officers of this alleged error and amendment to the circumstances giving rise to the citizen’s arrest. He made no attempt to advise the Metropolitan Toronto City Police or management of the Royal York Hotel that his typewritten reports of April 23rd, 1984 were allegedly incorrect and that a sexual assault had not been committed by the accused citizen on that date.
The foregoing evidence has sustained the allegation that Constable Saunders knowingly submitted false records supporting a very serious charge of sexual assault.
The actions and conduct of constable Saunders demonstrate a flagrant breach of police ethics and a wanton disregard for the rights of the public, resulting in the arrest and incarceration of a citizen on a charge that could not be sustained by evidence. This abuse of police authority cannot be tolerated and, in view of his past discipline record, which already includes two offenses relating to false reports, the dismissal will stand and your step 3 grievance is declined.
Yours truly,
Chief, Department of investigation”
The principal grievance lodged against the dismissal itself took the form of an appeal to the Chief, department of Investigation of the company, the whole pursuant to Article 11.04 of the Collective agreement. It bears date January 26, 1985 and reads as follows:
“January 26, 1985
Mr. James M. Mickel
Chief, Dept. of Investigation
Suite 253, Windsor Station
Montreal, Quebec
Dear Mr. Mickel:
This has reference to Constable R.A. Saunders, Toronto, who was advised by Superintendent R.K. Leavitt in a letter dated January 21, 1985 that he was “hereby dismissed from the Department” and his file closed. The dismissal is based on the results of a disciplinary Hearing concluded on January 14th, 1985 in connection with an allegation that on or about April 23, 1984 he, Saunders, falsified records concerning circumstances of the arrest of an individual.
On September 4, 1984, sergeant Keith Rogers and constable Daniel Hayes of the Metropolitan Toronto Police Force arrived at union Stations Canadian Pacific Police Office, Toronto, and did arrest and charge Saunders with “Public Mischief”.
In a letter dated September 5, 1984, Superintendent Leavitt advised Constable Saunders that “you are hereby advised that at about 1455 hours, in connection with an allegation that on or about April 23rd, 1984 you falsified records concerning circumstances of the arrest of an individual which has since led to your being arrested and charged with criminal offenses by the metropolitan Toronto Police Department”.
On January 4, 1985, Constable Saunders appeared in Provincial Court to answer to the charges laid against him by the Metropolitan Toronto Police force and he was acquitted on all charges by the Trial Judge.
During the Disciplinary Hearing concluded on January 14, 1985, Saunders admits to having drawn a line through a few words of his notes, in his note-book, after noting that he had made an error in transcribing the particulars of his arrest. This was done in the manner he was taught at the C.P. Police Winnipeg School. There was no intent by him to falsify records but only to correct errors he had made in accordance with taught guidelines. The charge was not substantiated by the Metropolitan Toronto Police before an Ontario Provincial Judge, nor was it substantiated during the hearing concluded before Superintendent Leavitt on January 14, 1985.
It is the Association’s position therefore, that Constable Saunders be reinstated immediately and be paid all monies lost as a result of this suspension which became effective at 1455 hours, September 4, 1984.
Yours truly,
M.J. Doucette
President”
At the outset of the hearing, respective counsel for the parties produced into the record the following “joint statement of issue”.
JOINT STATEMENT OF ISSUE
1. In April 1974, Roger Anthony Saunders was hired as a constable in the Canadian Pacific Limited, Department of Investigation (“the Department”) and sworn as a railway constable pursuant to the provisions of section 400 of the Railway Act of Canada. As such, he was a peace officer within the meaning of section 2 of the Criminal code.
2. On April 23, 1984, constable Saunders was working at the Royal York Hotel in the City of Toronto
3. On September 4, 1984, constable R.A. Saunders was charged with public mischief and attempt to obstruct justice and arrested by the Metropolitan Toronto Police Department in connection with an incident which had occurred on April23,1984 when an individual, Douglas Nicholson, had been arrested and charged with sexual assault.
4. At about 14:55 hours on September 4, 1984, constable R.A. Saunders was suspended from service by the Department.
5. On September 5, 1984, superintendent R.K. Leavitt notified constable Saunders in writing to confirm that, on September 4, 1984, he had been suspended from service in connection with an allegation that on or about April 23, 1984, he had falsified records concerning circumstances of the arrest of an individual which had since led to his being arrested and charged with criminal offenses by the Metropolitan Toronto Police Department and that this suspension from duty was without pay. Constable Saunders was further advised that a disciplinary hearing would be held on Friday, September 14, 1984, in connection with this allegation.
6. On September 6, 1984,constable R.A. Saunders filed a grievance alleging that he had been suspended from duty without pay, without cause and in contravention of the collective agreement and requesting that he be reinstated with full pay
7. At the request of the Association and of the grievor, the disciplinary hearing called for September 14, 1984, was postponed and rescheduled to 09:00 hours, Thursday, October 11, 1984.
8. On October 2, 1984, constable R.A. Saunders appeared in Court to enter a plea of not guilty. Eventually, his trial was set for January 4, 1985.
9. At the disciplinary hearing held on October 11, 1984, constable Saunders did not reply to questions relating to the events of April 23, 1984, and repeatedly made the following statement:
“I respectfully submit that I am not guilty of any wrong doing and I am anxious to reply to your questions. However, my counsel has instructed me not to answer any questions until my outstanding charges in relation to this hearing have been disposed of in a competent Court of Law.”
In view of this, superintendent Leavitt decided to recess the hearing until further notice.
10. On January 4, 1985, constable R.A. Saunders was acquitted. The judge dismissed the charge that, on April 23, 1984, he had unlawfully, with intent to mislead Harry Darcy, a peace officer, caused him to enter upon an investigation by making a false statement to Harry Darcy that the accused, Douglas Nicholson, had committed the offense of sexual assault, contrary to the Criminal code.
11. On January 9, 1985, the department notified constable R.A. Saunders that the disciplinary hearing commenced on October 11, 1984, would resume at 10:00 hours, Monday, January 14, 1985.
12. The disciplinary hearing was held on January 14, 1985.
13 On January 21, 1985, superintendent R.K. Leavitt notified R.A. Saunders in writing that the charge of having, on or about April 23, 1984, falsified records concerning circumstances of the arrest of an individual had been sustained. He was further advised that, in view of his discipline record which included falsifying records, he was being dismissed from the Department.
14 On January 26, 1985. The Association and the grievor filed a grievance disputing his dismissal.
15. The Association hereby submits that:
1. The decision of the Department to suspend constable R.A. Saunders without pay as of September 4, 1984, was unjust and without cause and contrary to the provisions of the collective agreement.
2. The Department dismissed constable R.A. Saunders unfairly and without cause and in contravention of the provisions of the collective agreement.
16. The Company submits that:
1. Constable Saunders was properly dismissed for cause and the present grievance should be dismissed.
2. The Company acted properly in suspending constable Saunders pending the outcome of the criminal charges against him, particularly in view of the fact that constable Saunders would not properly participate in the October 11, 1984 disciplinary hearing.
Montreal, August 15, 1985
_______________________ _____________________
Canadian Pacific Police Canadian Pacific Limited
Association Department of Investigation
In effect, The Grievor, a police constable with the company, contests his suspension without pay on September 5, 1984 and his subsequent dismissal on January 21, 1985 following investigation and hearing. He seeks reinstatement with full rights and benefits and compensation for lost wages.
At the hearing, extensive documentary evidence was filled by mutual consent of the parties, which evidence was supplemented by over two (2) days of hearing. Under review is alleged falsification of reports on the Grievor’s part in relation to an incident which occurred on April 23, 1984 at the Royal York Hotel in Toronto where the grievor was on active duty as a police constable. In this regard, it is the grievor’s contention that there was nothing improper in the manner in which he conducted himself and discharged his duties and that discrepancies between official reports presented by the Grievor shortly after the incident and corrected entries in his notebook upon which subsequent evidence given at the trial of an individual arrested during the course of the incident was based were entirely innocent and attributable to honor error.
While the documentary evidence and testimony presented at the hearing was extensive and far-reaching and at times contradictory, the Tribunal has had no difficulty in drawing from this evidence the essential elements which it requires for a determination of the issues of fact to which the grievances give rise.
By April 23, 1984, the Grievor had been in the company’s employ for approximately ten (10) years and at the date of dismissal occupied the post of police constable assigned to security at the Royal York Hotel in Toronto. The grievor had served in this capacity for some three (3) to four (4) months prior to which time he had occupied a desk position as office constable. As a police constable assigned to security at the hotel, it would have been the Grievor’s duty to ensure the observance of laws and regulations within the hotel facility and all that implied.
While on duty on April 23, 1984, at approximately 4:00 P.M., the Grievor apprehended a suspect in a men’s washroom on the main mezzanine level of the hotel for an offense perceived by the Grievor as a sexual assault. Given the nature of the perceived offense, the Grievor contacted Metropolitan Toronto Police and arrangements were made for a Metro Toronto police constable, a Mr. Fred Ross, to attend at the hotel to take the suspect into custody. Standard procedures applicable for an offense of the type alleged would have required arrest of the suspect, strip search, fingerprinting, booking, photographing and detention pending release. The evidence disclosed tat these procedures were in fact applied and followed in the case of the suspect in question.
At the same time, the grievor submitted the following resume of the incident to Constable Ross, which he had prepared in writing prior to the lather’s arrival at the hotel.
“Date Apr. 23/84
From Roger A. Saunders
To CP Police Toronto
at 3:30 p.m. while in the Main Mezz washroom at the east end of the floor I observed a male later identified as Douglas James NICHOLSON expose his penis and begin to masturbate in public view. He then motioned me to follow him and we went to the men’s washroom on the Main mezz near the Speakeasy bar. There the man unzipped my pants and touched my penis. I then identified myself placed him under arrest, read him his rights and took him to the office on a charge of sexual assault.
R.A. Saunders
CP Police”
Further, before completion of his work shift at 4:30 P.M. that same day, the Grievor prepared the “Security Department report” which, in effect, contains a synopsis and description of occurrences during the course of his work shift. Of importance is an extract taken from that report in which the Grievor describes the incident in question.
“3:50 pm.
file #
97-4-84
Apr 23/84
While in the Main Mezz washroom at the east end a male person later identified as Douglas James NICHOLSON of 260 scarlet rd #1310 Toronto Dob July 23/84 entered the washroom, exposed his penis to me and then began to masturbate. He then motioned me to follow him and we went to the men’s room by the Speakeasy. I followed him in to the washroom where the man unzipped my pants and touched my penis. I then identified myself, placed the man under arrest for sexual assault and took him to the office and Pc Ross #3146 52 Div Attended and the man was issued an 8.1 and told not to return to the Hotel.
S/O Saunders”
This extract substantially reproduces the original entry made by the Grievor in the notebook maintained by him for the purpose of recording incidents that would occur in the ordinary course during his work shift. This original entry in the Grievor’s notebook as it was written before modification read as follows:
“While in the men’s mezzanine washroom, a male person later identified as…entered the washroom, exposed his penis to me and began to masturbate. He then motioned me to follow him. We then went to the washroom on the main mezzanine near the speakeasy and entered the washroom. The man then unzipped my pants and touched my penis. He was then identified myself placed him under arrest for sexual assault, read him his rights and took him to the office.”
The evidence disclosed that while the grievor reported the incident in terms of what he perceived as the commission of a sexual assault upon his person and requested that the suspect be so charged, serious doubt was expressed by Sergeant Harry Darcy of the Metropolitan Toronto Police, Criminal Investigation Branch, who had at least one telephone conversation with the grievor immediately following the arrest of the suspect upon the advisability of proceeding with so serious a charge. In this regard, this witness would have preferred the lesser charge of indecent act, a course which would have eliminated the need for arrest, detention and the other procedures described above. Nonetheless, the decision, purportedly at the insistence of the Grievor, was to present to a magistrate for signature, a charge upon the indictable offense of sexual assault as opposed to the much less serious summary conviction offense of indecent act. In the final analysis, however, the magistrate on the basis of the description of what had taken place at the Royal York Hotel on april23, 1984, refused the issuance of a charge of sexual assault, an assessment in which the Crown Prosecutor in charge concurred. Accordingly, the suspect was charged with the summary conviction offense of indecent act and trial proceeded upon that charge on June 14, 1984.
At the trial of the suspect on June 14, 1984, the Grievor testified upon the incident as follows:
“A. At 3:50 p.m. on April the 23rd, I was in the main men’s washroom, which is one floor above the ground floor level at the east end. I was in the washroom. I was at a urinal. At this point, the urinals face east to west. I was in the extreme east end urinal. A gentleman who I identify as the accused before the court entered the washroom and placed himself two urinals to my left. After a short while, I observed the defendant masturbating at the Urinal. At this time, I noticed that his penis was in an erect state. He then turned to me and masturbated for about two or three seconds.
Q. What did you then do, sir?
A. He then motioned to me to follow him with his head to the left, so I followed him out of the washroom. We then went down to another washroom which is down the north corridor, by a bar called the Speak-Easy. It’s a very small washroom, the men’s room.
Q. Was he still masturbating all this time?
A. No, he, at this time, had closed himself up. Okay. We went into the washroom. He went to the - at this point, the urinals face north to south. I was in the extreme south urinal. He was in the one next to me. he then unzipped his pants and removed his penis. I did the same. He then lent over his right hand and touched my penis. At this point in time, I identified myself, placed him under arrest, read him his rights and took him to the police office for further investigation.”
The transcript of the testimony offered by the accused Nicholson in his defense at his own trial corroborates the Grievor’s testimony given at the same trial to the effect that it was the Grievor who unzipped his own fly in the second washroom.
During the course of the same hearing, certain corrections were observed in the Grievor’s version of the incident as recorded in his notebook. These corrections, which remained unknown to anyone but the Grievor and were not reflected through correction of other documentation issued or recorded to that time by the Grievor, were to the following effect.
“While in the main mezzanine washroom, a male person later identified as…entered the washroom, exposed his penis to me and began to masturbate. He then motioned me to follow him. We then went to the washroom on the main mezzanine near Speakeasy and entered the washroom. I then identified myself, placed him under arrest for sexual assault, read him his rights and took him to the office.”
When the discrepancy in what was regarded as an important element in the case was exposed, an investigation followed, culminating in the laying of a charge of public mischief and attempt to obstruct justice against the Grievor on September 4, 1984. His suspension without pay followed the next day pending the outcome of a disciplinary hearing which the Collective Agreement contemplates at Article 10.
These charges brought against the Grievor were tried on January 4, 1985. The trail ended in acquittal. This notwithstanding, the disciplinary hearing of the Grievor, which had been postponed from an earlier date pending conclusion of the criminal proceedings, was continued and resumed on January 14, 1985. The conclusion of proceedings at the disciplinary hearing were communicated to the Grievor on January 21, 1985 by Superintendent R.K. Leavitt in the following terms:
“Toronto, Ont., January 21, 1985.
File: E.R. Staff
Mr. R.A. Saunders
Mr. Saunders:
Reference Disciplinary Hearing commenced October 11th, 1984 and resumed January 14th, 1985 in connection with an allegation that on or about April 23, 1984 you falsified records concerning circumstances of the arrest of an individual.
The charge has been sustained and therefore, in view of your discipline record which includes falsifying records, you are hereby dismissed from the Department and your file is closed.
It will be necessary for you to arrange with Inspector-Personnel B. Gilroy for the return of all company property, uniforms, etc.
Yours truly,
R.K. Leavitt
Superintendent.”
It is the Grievor’s contention that the version of the incident as reflected by the corrections effected by him in his notebook and reiterated at the trail of the suspect and at his own trial represents what in fact occurred during the course of the incident of April 23, 1984. He maintains that these corrections were introduced into his notebook some two (2) to three (3) days following the incident when he realized the error. He concedes upon reflection that he should perhaps have seen to it that these corrections were recorded in documentation that he had prepared and issued earlier, explaining his failure to do so in terms of the minimal importance that he attached to the corrections.
The Tribunal would state at this point that the deliberations of the trail judge upon the charge of public mischief and attempt to obstruct justice brought against the Grievor were subject to very different principles that those which guide this Tribunal in its evaluation of the facts. The trial judge in the criminal prosecution had to decide whether he was satisfied beyond a reasonable doubt that there existed a criminal intent on the Grievor’s part given the circumstances and the explanations offered. This Tribunal, on the other hand, need not preoccupy itself with any question or criminal intent. It must decide rather whether the actions imputed to the Grievor by the Company constitute culpable conduct on his part as would have justified the course of action which it followed. In this regard, the Tribunal must assess the evidence not against the standard of “reasonable doubt” but rather upon the basis of whether that evidence establishes the culpable misconduct alleged to a high degree of probability, the case being one of discharge (Brown & Beatty, Canadian Labour Arbitration, Second Edition, Canada Law book Ltd., 1984, 7:2500, page 347 et seq.).
Two (2) versions of the incident, in fact, emerged. These vary upon an important issue of fact, namely, who unzipped the grievor’s fly in the second washroom. The original inscription in the Grievor’s notebook, the report filed with Metropolitan Toronto Police and the Grievor’s daily report endorse a version as would have the suspect unzipping the Grievor’s fly. The uncategorical evidence of Sergeant Darcy and constable Ross has the Grievor informing these police officers at the time of the incident to this same effect. On the other hand, the corrected inscription in the notebook as well as the Grievor’s evidence and that of the suspect Nicholson, as set forth in the transcript of the lather’s trial, indicate that it was the Grievor who unzipped his own fly in the second washroom. The Grievor attributes the discrepancy to honest error. The Company, for its part, however, maintains that there was no such honest error but rather that the Grievor “knowingly submitted false records supporting a very serious charge of sexual assault”. (See response to grievance dated February 12, 1985 reproduced above.) Its reasons for this conclusion appear in this response.
Like the Company, the Tribunal has come to the conclusion that the Grievor’s actions cannot be explained in terms of honest error. The particular occurrence at issue, namely, who unzipped the Grievor’s fly, is not by its nature one that might easily be mistaken. The Grievor reported this fact separately in two (2) different written documents on the spot, one for submission to the Metropolitan Toronto Police and the second for purposes of completion of his Security Department Report for his shift. There is as well the testimony of Sergeant Darcy and Constable Ross both of whom recalled with absolute certainty the fact of the Grievor reporting the incident in terms of the suspect unzipping the Grievor’s pants. In fact, the testimony of Sergeant Darcy, which the Tribunal accepts, was to the effect that the Grievor was adamant upon the bringing of a charge of sexual assault based upon the circumstances of the incident upon which the Grievor was very clear. The nature of the charge to be brought against the background circumstances as they were reported was indeed discussed at the time and the Grievor was instant upon the course to be followed given the factual situation he had outlined to Sergeant Darcy. Under these circumstances, it is difficult to conceive of the possibility that the Grievor had made an innocent error on so conspicuous an occurrence connected with the very manner of the alleged assault itself, and then unknowingly repeated the error on so many different occasions.
There is the additional consideration that the Grievor was an experienced police constable. He must surely have known that the element of whether he or the suspect unzipped his pants was important. At issue might have been a matter of acquiescence or plausibility which would bear upon the validity of a charge of sexual assault and his own sense of judgment in dealing with the offender. The tribunal finds it difficult to accept the grievor’s explanation for neglecting to advise others implicated in the file of the change in his version of the incident. This he would surely have done, given his experience, had the discrepancy been attributable to error as the Grievor pretends. It is not as though the corrections made were relatively insignificant. The Grievor, according to his own admission, only learned shortly prior to the trail of the offender that the charge proceeded with what was that of indecent act and not sexual assault. It is quite evident tat upon a charge of sexual assault the question of who unzipped the grievor’s pants would have been integrally connected with the act of assault and, as such, would have been most important.
On the whole, therefore, the Tribunal is unable to believe that the Grievor’s original version, be it true or false, can be explained in terms of honest or innocent error. Thus, the Tribunal is left with two (2) possibilities. Either the Grievor initially misrepresented in his notebook what actually took place during the course of the incident and issued official reports perpetuating this misrepresentation of the Grievor in Modifying the inscription in his notebook and in testifying as he did at the trial of the suspect and at his own trial opted for an altered version of the incident which was itself untrue. As stated, the Company in its written response to the Grievance suggests that the version of the incident originally offered by the Grievor was falsified for whatever motives. The Grievor, for that matter, concedes that this original version was indeed incorrect. The Tribunal, for its part, cannot be certain upon the evidence of whether this was so or whether, on the contrary, the Grievor opted subsequently for a falsified version which he felt might reflect upon his handling of the incident or which would be more likely to lead to a conviction, that is, a version with which he felt more comfortable for purposes of trial. In either case, the conclusion, as far as the Tribunal is concerned, is inescapable that what the Grievor did, he did knowingly as the Company pretends so that whichever version of the incident offered is the correct one, an element of arranging the evidence to suit the Grievor’s own ends appears.
The Association contends that the Company should be limited to reliance upon the allegations of submission of false reports alone without regard to the underlying incident to which these related in seeking to justify its decision to discharge. The Tribunal believes, however, that in the circumstances of the case before it, a reference to the act of issuing false reports necessarily implies a reference to the underlying conduct which these reports were designed to distort. The distortion at whatever stage would have been designed, as the Tribunal has stated, either to cloak the Grievor’s handling of the incident or to further the prospect for conviction of the suspect, in effect, by fashioning the evidence to suit either of these purposes. The Tribunal must state that it is under the clear conviction that the Grievor’s preparation of records and reports of the incident was merely a sequel to aspects of his conduct during the course of the incident and, as such, would be integrally attached to the incident itself.
In reviewing the Grievor’s actions during the course of this incident, the Tribunal is a t a loss to understand why the Grievor would have permitted matters to progress to the point where they did. The Grievor states that he observed the suspect in the course of the commission of an indecent act. As to why he did not confront and apprehend the suspect at that time remains unexplained. As to why the Grievor would have followed the suspect, apparently upon invitation of the latter, to another washroom, remains unexplained. As to why the Grievor would have permitted matters to progress in the second washroom to the point where the suspect was able to reach down and touch the Grievor’s private parts remains unexplained. Pursuing matters to the extreme as the Grievor did to the point of cooperating to an extent and practically encouraging the commission of a more serious offense that the one uncovers and the compounding the gravity of this conduct by his manner of dealing with the reports could well have proven a source of embarrassment to the Company, not to mention the very important aspect of the rights of the persons frequenting the hotel. The Grievor’s main function was to ensure that law and order be maintained in the hotel and to prevent the commission of criminal offenses. The Grievor seems to have gone beyond these parameters in this case to a point which the Tribunal would view as most serious. In fact, the Tribunal believes that the Grievor’s manipulation of his version of the incident can best be explained in terms of his conduct during the course of the incident which he felt less than comfortable. Thus the Tribunal must conclude that the Grievor’s actions during the incident and the preparation by him of his reports and evidence upon the incident must be viewed as part and parcel of the same thing.
What the tribunal is left with, therefore, is that the Grievor, either initially or at a subsequent time, submitted a version of an incident involving the laying of criminal charges that he knew to be false upon an important fact. It is fundamental that those assume responsibility for law enforcement must, to the extent possible, secure and prepare evidence fairly and honestly. It is equally fundamental that a version of an incident which might involve the laying of criminal charges which a police officer prepares and submits either in the form of official reports or in testimony given at a trial should reflect the truth. There can be no justification for distorting the true version of an incident and actions of such a nature can never be tolerated or condoned. In this case, the Grievor furnished two (2) versions of an incident differing on a material and important fact. One of these versions was false and the Tribunal, for reasons above given, has come to the conclusion that the Grievor knew full well that such was the case. As such, culpable conduct on the Grievor’s part has been demonstrated and a response on the part of the Company to deal with that culpable conduct was in order.
The question which therefore remains is whether the Grievor, given his ten (10) years of service with the Company, should have been made the object of discharge or whether some other penalty should have been selected.
The Tribunal, after difficult deliberation, has come to the conclusion that it would be improper for it to interfere in the Company’s decision by obliging it to resume its relationship with the Grievor. This is because of the lengths to which the Grievor seems to have been prepared to go in this case. Here, there is an element of distortion of what occurred during the course of an incident involving the laying of criminal charges. Either the Grievor distorted in his original version the facts as they took place or if these were accurately reported in the first place, he subsequently introduced a falsified version of what had taken place by modifying the entry of the incident in his notebook and then rendering testimony based upon the modified version. In either case, the Grievor would have been responsible for the manipulation of a fact to suit his own purposes. There emerges in this case an important element of dishonesty in law enforcement which could have carried with it serious consequences. Honest and fair treatment of evidence by those who enforce the law is at the very basis of our judicial system and, in this area, there is no room for compromise. What appears in this case goes beyond indiscretion or error in judgment in conducting an investigation. In effect, the Company has lost confidence in the Grievor because of his actions and the Tribunal can understand its position.
In coming to this conclusion, the Tribunal has not ignored the reference by counsel for the Association to the decision of La Cite de Lachute -et- La Fraternite des policiers de la Cite de Lachute, June 22, 1979, decision of Me Pierre-André Lachapelle, where a police sergeant violently accosted a motorist following a chase. Unlike the present case, however, the arbitrator in that case reconciled the police officer’s actions in terms of an “exces de zele commis dans le feu de l’action”, which in no way concerned a question of an honest approach to law enforcement.
The tribunal will finally dispose of an argument presented by Association counsel to the effect that it was not open to the Company to have suspended the Grievor pending resolve of criminal proceedings that had been brought against him under the circumstances. In this regard, reference was made to a considerable body of jurisprudence enunciating the principle that an employer will not be entitled to suspend upon the sole basis of a criminal complaint brought against an employee unless such suspension is warranted to protect the employer’s legitimate concerns which might otherwise be seriously imperiled (e.g. Coca-Cola Limitee -and- Union des routiers, brasseries, liqueurs douces et ouvriers de diverses industries, local 1999, 24 L.A.C. (2d), page 60).
The Tribunal does not see the question of suspension as a serious issue in this case because the Collective Agreement specifically deals with the matter of suspension pending a disciplinary hearing. The grievor in this case was not suspended pending the outcome of criminal charges but rather in anticipation of a disciplinary hearing which had been scheduled for September 14, 1984, that is within ten 910) days of the suspension. Such a course of action was available to the Company pursuant to Article 10.01 which reads as follows:
“10.01 no employee shall be disciplined or discharged until he has had a fair and impartial hearing and his responsibility is established. Except as otherwise provided in Article 10.04 an employee will not be held out of service in excess of ten working days, pending the holding of a hearing. Such hearing shall be held as soon as possible and where suspension is involved, not later than twenty-five working days from the date of suspension unless otherwise mutually agreed.”
The Collective Agreement provided that if an employee was exonerated upon disciplinary hearing, compensation for wages lost during the currency of the suspension imposed would be in order. In this regard, Article 10.06 provided:
“10.06 If, in the final decision, the charges against an employee are not sustained, his record shall be cleared of the charges; if suspended or dismissed, he shall be returned to his former position and reimbursed for wages lost, less any earnings derived from outside employment during the period so compensated; if the investigation was away from home, he shall be reimbursed for reasonable travel expenses upon presenting receipts.”
Although the disciplinary hearing did not take place until January 14,1 985, this state of affairs was in no way imputable to the Company. In fact, it was the Association and the Grievor who had requested a continuance of the hearing on September 14, 1984 and when the hearing was resumed on October 11. 1984, it could not proceed because the Grievor, faced with pending criminal charges, was unwilling to furnish testimony that might adversely affect the outcome of the pending criminal charges.
Under the circumstances, the only issue upon the suspension that would have remained, as far as the Tribunal is concerned, would have been entitled had his grievance been maintained either at the stage of the disciplinary hearing or upon subsequent arbitration.
For the foregoing reasons, the grievances are dismissed.
DATED at Montreal this 2nd day of October, 1985
______________Harvey Frumkin
ARBITRATOR