IN THE MATTER OF AN ARBITRATION

BETWEEN : CANADIAN NATIONAL RAILWAY COMPANY

(the "company")

AND : CANADIAN NATIONAL RAILWAY POLICE

ASSOCIATION

(the "association")

AND IN THE MATTER OF GRIEVANCES OF CONSTABLES SABO AND MANNA

For the company

J . Glazer, Counsel

Y . Chouinard, Senior Supperintendent

G . Cowley, Senior Supperintendent

D . Lord, System Labour Relations Officer

For the Association

B . Chercover, Counsel

Hearing in this matter were held in Toronto on February 24 and March 16 , 1987.

AWARD

This is the arbitration of two grievances against discharge. The company maintains that the two grievors, constables K.L.Sabo and C.Manna used excessive force on a person they detained, ejected him from Union Station in Toronto when he should have been placed in protective custody and failed to record or report the incident in keeping with internal practices. It maintains that the termination of their employment was justified. While the Association does not deny that excessive force was used, it maintains that the constables exercised sound judgment in not charging the detainee or keeping him in protective custody and that the incident did not merit formal document. It argues that the penalty of discharge is excessive in the circumstances and requests the arbitrator to substitute a lesser sanction.

The material facts are not in controversy. At the time of the incident on february 24, 1986 grievors Cosmo Manna and Kenneth Sabo had seven and eight years of service respectively as constables with the CN police. While most of their work had been in patrol car assignments, in the week of February 24th they were working together on the afternoon tour of duty inside Toronto’s Union Station. It is common ground that

constable Manna had been assigned to Union Station for some five months while constable Sabo was transferred to that location for that week only, as a vacation replacement. The duties of CN police constables in Union Station involve, among other things, dealing with the not insubstantial number of transients who frequent that location, particularly during the winter months. Commonly the constables on duty are required to remove transients who are panhandling or who are in a drunken or disorderly state, causing a disturbance to the general public using the station. As police officers the constables have the power to arrest or detain individuals and to lay charges for violations of provincial statutes, including those dealing with liquor violations and trespass.

For the guidance of constables working on the Great Lakes region the company issued circular no. 396 on June 6, 1983, with a partial amendment issued on june 16, 1983, (circular no. 396a). The directive to CN police staff is as follows:

On a number of accasions it has been found that officers are issuing

Provincial Offence Notices to intoxicated persons who are then released.

Persons who have lost control of their faculties ,to a degree that they

are no longer capable of looking after themselves should be placed in

protective custody. Reasons for the arrest of intoxicated persons should

be based on the following criteria:

(a) He or she is causing trouble to persons who have a perfect right

to walk in or enjoy a public place.

(b) Through intoxication the person is in danger of sustaining injury

or causing injury to others.

In all cases of intoxication handled by CN police by issuance of offence

notices, arrested persons must be transported to the local police station

to be held until sober. In lieu of issuing offence notices an officer may

escort intoxicated persons to a detoxification center, when such action is

considered appropriate.

It is not disputed that the foregoing document reflects the options available to a police officer dealing with intoxicated persons who have lost control of their faculties to a point where they are at risk. The powers of a police officer in respect of a person found intoxicated in a public place are more specifically articulated in s.45 of the Liquor Licence Act of Ontario, R.S.O. 1980 c.244 which provides, in part, as follows:

45.(4) No person shall be in an intoxicated condition in a public

place or in any part of a residence that is used in common

by persons occupying more than one dwelling therein.

1975, c.40, s.46(3)

(5) A police officer may arrest without warrant any person

whom he finds contravening subsection (4) where ,in the

opinion of the police officer ,to do so is necessary for the

safety of the person or is necessary to protect another

person from injury . 1978, c.42, s.3(2)

It appears beyond dispute that when faced with a transient who is under the influence of alcohol the following options are available to the CN police constable: if the transient is intoxicated but is not a risk to himself of to others, to either remove him from the premises without charge, or to remove him while issuing a provincial offence ticket for a liquor offence, trespass or both; If the transient is so intoxicated as to be unable to care for himself or to be a danger to himmself or to others, the constable may arrest him and deliver him to the nearest police station for incarceration or, should he decide not to lay a charge, to take the person into custody and deliver him to a public hospital designated as a detoxification center under the Liquor Licence Act, s.36(2) of which provides:

36.(2) Where a police officer finds a person in a public place

apparently in contravention of subsection 45(3), he may

take such person into custody and, in lieu of laying an

information in respect of the contravention, may escort

the person to a detoxification center.

It appears beyond dispute that transients, and particularly those who frequent Union station in Toronto, have a pronounced capacity for repeat offences. One of the most difficult aspects of a CN officer’s job at the station is dealing with the same individuals who return to the station notwithstanding repeated warnings and charges made against them by the railway police. The uncontradicted evidence is that on more than one occasion transients who have been taken to a nearby police detention centre by CN constables have been released almost immediately, only to reappear at Union Station log book tendered in evidence confirms that from week to week and month to month the same individuals are repeatedly charged with liquor and trespass offences. The parties are in agreement that this reality is an unavoidable frustration of the work of a CN police constable assigned toUnion Station.

The following facts are disclosed by the evidence. On February 28, 1986 Inspector L.E. Reeks of the CN Police was notified that constable Sabo and Manna had been charged by the Metropolitan Toronto Police Department with "assault causing bodily harm", in contravention of section 245(1)(b) of the criminal code of Canada. The metropolitan Toronto police were in receipt of a complaint by Mr. Donald F. Joyce, a transient well known to the police staff at Union Station. The metropolitan Toronto police investigation revealed that the grievors had ejected Mr. Joyce from Union Station at approximately 6:00 p.m. on February 24, 1986. Some fifteen hours later, it appears that Mr. Joyce woke up in a doorway in the vicinity of Bay and Richmond Streets, suffering from serious internal injuries, including a crushed and lacerated urethra as well as multiple bruises to his legs. He reportedly walked to St. Michael’s Hospital where he was admitted for treatment. As a result of a report made to the Metropolitan Toronto Police by Mr. Joyce the charges against the grievors were laid on February 28, 1986.

On February 28 and March 4 respectively, constables Manna and Sado were advised that they were suspended without pay pending an investigation of the charges against them. An internal investigation ensued, following which both grievors were notified on April 14, 1986 that they were discharged from the service of the company for the following violations of department regulations:

1. Use of unnecessary force on the person of Donald

Frederick Joyce, 24 February, 1986, at Union Station.

2. Neglect of duty by failure to make written entry in

notebook and submit a written report.

3. Failure to comply with written instructions re procedures

relating to the handling of intoxicated persons.

The grievors were not convicted of the criminal charge. The evidence establishes that on or about August 25, 1986 the criminal prosecution was dropped, in the words of Sergent Peter Petruzzelis of the Metropolitan Toronto Police who testified at the hearing, "Because no victim could be located at the time of the trial".

From the time of the initial police investigation the grievors strongly denied having kicked or severely beaten Mr. Joyce. They admitted to the Metropolitan Toronto Police investigator, as they did at the arbitration hearing, that they each slapped Mr. Joyce once on the back or side of the head before removing him from the railway station. According to their evidence, he was in a fit condition to take care of himself when they left him at the entrance to the railway station on Front Street shortly after 6:00 p.m. on the evening of February 24, 1986. It should be emphasized that the company does not rest its case on an allegation that the grievors kicked or assaulted Mr.Joyce, or caused him the severe injuries which he obviously had on the morning of February 25th. Company counsel acknowledges that there is no evidence whatever to sustain such an allegation. Consequently, the company’s case in relation to assault is restricted to the two slaps administered by the grievors ,which were admitted to the police at the tie of the initial investigation. The gravemen of the offence committed by the grievors, according to the company, is , firstly , that they took the law into their own hands by purporting to teach Mr. Joyce a lesson and, secondly, that they turned him out of the station in a state of severe intoxication, when the likelihood of his coming to some harm, as he in fact did, was reasonably foreseeable. In other words, accepting that Mr. Joyce was assaulted by someone else in the fifteen hours between his ejection from union station and his admission to St.Michael’s Hospital, the Company maintains that the harm to Mr. Joyce might have been avoided had policy directives been followed and the transient either placed in protective custody or delivered to a detoxication centre. While the failure to record the incident is also listed as a ground for discipline, it is primarily listed as a course of conduct consistent with wrongdoing on the part of the grievors, and an intention to conceal their actions.

The testimony of the grievors relates essentially the account of what transpired on February 24, 1986. Constables Sabo and Manna testified that while they were investigating a credit card fraud in a bar and restaurant at Union Station they were approached by a woman complaining about Mr.Joyce, whom they observed panhandling in the adjacent area of the station. They admit that they took Mr.Joyce, who was not loud or obstreperous, to the CN police office in the station. There was no violence in the manner he was conducted to the office, although each of the constables held him by one arm as they walked.

According to constable Manna’s evidence, he was more familiar with Mr.Joyce than was Constable Sabo, and it was his initial intention to charge him with being intoxicated in a public place contrary to section 45 of the Liquor Licence Act. When they were in the office, however, he was reminded by Sabo that their ongoing investigation of the credit card fraud required them to be on the train platform in search of some suspects within a few minutes. Judging that they did not have time to process a charge against Mr. Joyce and, according to their evidence at the arbitration hearing, that although he was under the influence of alcohol he was nevertheless able to take care of himself, they resolved to let him go. According to their explanation, because of the frustration occasioned by his past offences, and the knowledge that he would now go scot free, frustration caused them to admister a slap to his head while admonishing him not to return to Union Station. They categorically deny that he was intoxicated to an extent that he could not take care of himself. They also testified that there was nothing unusual in their failure to document or report on the incident, as the ejection of a transient or trespasser from Union Station by members of the CN police without the formality of a report is very common.

The arbitrator had some difficulty with a number of aspects of the grievors’ evidence. During the initial police investigation into the incident conducted by sergeant Petruzzellis, constable Sabo related that when Mr. Joyce was taken to the police office by the constables he was placed in a chair next to a desk in the office. It is common ground that transients taken to the office are not normally placed in that location, which is concealed, but are seated on benches in the more general area of the office, which is visible from the adjacent hallway through a window. Constable Manna told sergeant Petruzzellis that he had placed Mr. Joyce on the benches. Althrough constable Sabo related to the arbitration hearing that he must have been mistaken in thinking that they had sat Mr. Joyce on a chair in the enclosed area of the office, his statements made to sergeant Petruzzellis freshly, one day after the event, on February 25, 1986, when he was interrogated in the CN police office at Union Station, reflects no such confusion. The record contains the following exchange of questions and answers between sergeant Petruzzellis and Sabo on that occasion:

Q. Why was he in the station ?

A. He apologized for being there. Manna made comment

regiving him 7 days in jail recently. I didn’t check him

out because he had been released recently.

Q. What is the procedure ?

A. Well you are supposed to check people out. We took him

and sat him down in the chair next to the desk.

Q. Why didn’t he sit in the benches. Isn’t that where they

normally sit ?

A. Yes normally, I don’t usually work in here.

Q. Why wasn’t he charged ?

A. I don’t know why he wasn’t charged.

Q. Did you make an entry in your memo book ?

A. No, I don’t think it was necessary, he was just a wino.

Q. Do you normally make entries in your book when you

bring someone into the office ?

A. Normally yes.

Counsel for the company stresses this inconsistency in the evidence, arguing that it supports the view that the constables knowingly led Mr. Joyce to a place of concealment, with the prior intention of administering physical punishment to him. He submits that the man was placed within the inner office, and not on the benches, contrary to normal pratice, because the grievors did not wish their dealings with him to be observed by anyone. On a careful review of the evidence that submission would not appear to be without merit.

A second concern arises in respect of the state of intoxication of Mr. Joyce at the time in question. At the arbitration hearing both grievors insisted that Mr. Joyce was not sufficiently impaired to cause concern about his ability to take care of himself if ejected from the station. A somewhat different account, however, emerges from the initial interrogation by sergeant Petruzzellis on the day following the event, as the following experts reveal:

A. Well now, okay, I gave him a slap in the head, that was it he was

just a bum. Manna also slapped him in the head . I mean he had

been warned to stay out of the station. I didn’t kick him and Manna

didn’t kick him.

Q. Who slapped him first ?

A. Manna slapped him first.

Q. Why did Manna slap him ?

A. He was just a bum.

Q. Did he give you any problems or was he violent ?

A. No he wasn’t.

Q. What was his condition ?

A. He was very drunk.

Coupled with the foregoing evidence is the statement of constable Manna to surgeant Petruzzelis. He related that he initially intended to issue a provincial offences ticket to Mr. Joyce for being intoxicated, but then decided that it was too much trouble. This is consistent with his account at the arbitration hearing that Constable Sabo reminded him that they both needed to be present on the train platform within a few minutes. The whole of the evidence leads the arbitrator to the more probable conclusion that it was the pressing business of the moment, and not a reassessment of Mr. Joyce’s condition, which caused Constable Manna to decide not to detain him or charge him with a liquor offence. I am, on the whole, inclined to place the greatest weight on constable Sabo’s initial account to sergeant Petruzzellis that Mr.Joyce was "very drunk".

What, then, does the evidence disclose? It is clear that the two constables apprehended Mr. Joyce in a state of serious intoxication in a public area of Union Station on February 24, 1986. They took him to the CN Police office in the building, and placed him in an inner portion of the office where detained transients are usually put. In that concealed location they each slapped him at least once before escorting him out of the station. Fifteen hours later he appeared at a local hospital in a severely beaten state.

As noted above, the company does not allege, nor I may add does the evidence sustain, the suggestion that the grievors kicked Mr. Joyce or caused the injuries for which he was hospitalized on the morning of the next day. The arbitrator must, however, share the concern expressed by counsel for the company, that the ejection of Mr. Joyce to the street in a state of advanced intoxication left him extremely vulnerable, placing him in a situation where abusive assault or injury to him was not unforseeable. On the whole of the evidence the arbitrator is compelled to conclude that the three charges against the grievors, namely the excessive use of force, the failure to comply with detention procedures for severely intoxicated persons and the failure to make notations of serious incidents have been established.

I turn to consider the appropriate measure of discipline in the circumstances. In an exhaustive argument, counsel for the association placed before the arbitrator a number of precedents in the field of police discipline. These include the decisions of disciplinary officers made pursuant to the regulations under the police Act ,R.S.O. 1980 ,c.381, decisions on appeal made by boards of commisionners of police and, lastly, the most recent decisions of the police captains’ Board made under the Metropolitain police force complaints project Act, 1981.

The arbitrator was referred to a number of cases involving assault by a police officer against a civilian in a number of contexts. While it is unnecessary to review all of the cases cited, suffice it to say that in general the response of police disciplinary authorities to proved charges of assault or excessive use of force by police officers is to impose a suspension for a first offence. The cases supplied to the arbitrator involving decisions of the police complaints board in assault complaints reflect the imposition of suspensions ranging from three days to 30 days, depending on the gravity of the incident and the record of the officer involved. Repeat offenses tend to result in dismissal or resignation. While it was not suggested that the constables in the case at hand, as employees of the railway are subject to the Police Act. or the disciplinary procedures under it, counsel for the association argued that the discsplinary treatment of other police officers should be given some weight in considering appropriate disciplinary response in the instant case.

The arbitrator accepts the merit of that submission as a general proposition. Police constables employed by railway, exercising authority under the railway act as well as other federal and provincial statutes are subject to many of the same obligations, stresses and constraints experienced by police officers employed by municipal, provincial and federal government authorities in Canada. In matters of discipline, particularly relating to allegations of assault or excessive force in the course of arrest or detention, principles analogous to those which govern police forces generally should be applied. It is true that the company is in a somewhat different situation, in that it does business with the public and must have particular concern about its image in a way that a government authority might not. It is also true, however, that if it is to enjoy the privilege of maintaining a specialized police force with extraordinary powers of arrest and detention it must be prepared to apply disciplinary standards appropriate to persons employed in that kind of service.

It appears from the material before the arbitrator that the company discharged the grievors in the initial belief that they participated in a brutal assault and kicking of Mr. Joyce. When the evidence did not sustain that opinion, even following the withdrawal of the criminal charges against the grievors, the company nevertheless maintained the view that the slapping of the transient, and the departure from prescribed procedures of detention and documentation justified the grievors’ discharge. Accepting, as I must on the evidence, that the incident involved no more than two slaps to Mr. Joyce, however unacceptable that conduct might be, I have difficulty sustaining the position of the company that the outright termination of the grievors was justified. To put it differently, if it must be found that the grievors used excessive force, and that the use of excessive force is just cause for the grievors’ termination, there are mitigating factors which the exercise of the arbitrator’s discretion to impose a lesser measure of discipline.

The action of the grievors in slapping Mr. Joyce are plainly abhorrent. Ejecting an intoxicated transient, who was described as "very drunk" and judged deserving of being charged with intoxication in a public place, in circumstances that left open to question the transient’s ability to fend for himself is also an extremely serious matter. By the same token, the grievors’ prior records of good service to the company must be taken into account. Both grievors have been good employees. Constable Manna had no disciplinary demerits to his credit at the time of his discharge. While Constable Sabo did have 35 demerits, he was also the recipient of a number of commendations for his good service in the past. At the arbitration hearing both constables admitted their actions, stated their regret for what they had done and expressed the conviction that they would not make the same mistake again. In all of the circumstances the arbitrator is satisfied that the interests of rehabilitation and deterrence will be served if the grievors are reinstated in their employment forthwith, without compensation or benefits and without loss of seniority. I so order, and I retain jurisdiction in the event of any dispute between the parties respecting the interpretation or implementation of this Award.

DATED at Toronto this 9th day of April, 1987 .

---------------------------------

MICHEL G. PICHER

Arbitrator