AH - 173
IN THE MATTER OF AN ARBITRATION
BETWEEN:
CANADIAN PACIFIC LIMITED
(the “Company”)
AND
THE CANADIAN PACIFIC POLICE ASSOCIATION
(the “Union”)
IN THE MATTER OF THE GRIEVANCE OF CONSTABLE M. MAXMENKO
SOLE ARBITRATOR: Stanley H. Hartt, Esq.
There appeared on behalf of the Company:
D.W. Flicker, Esq
And on behalf of the Union:
R.M. Skelly, Esq
AWARD
This is the grievance of Constable M. Maxmenko. Constable Maxmenko was disciplined by the Company and suspended for eleven days without pay, as a result of an incident occurring on September 28, 1976 in the vicinity of the Parkdale Yards of the Company. The alleged infraction was the improper use and mishandling of the constable’s service revolver in violation of the applicable regulations. The constables grievance, dated October 20, 1976, was successively denied throughout the grievance procedure. The constable also grieved against the internal disciplinary hearing held by the Company in the following terms:
“Reference to correspondence “Statement” of October 13, 1976 concerning unfairness and partiality during the time the hearing was conducted. Due to the above I contest the handling of this matter in all it’ s content”.
What actually happened was that the constable was on duty, patrolling in uniform in the Parkdale Yard. His duties included pre-determined rounds, protection of special shipments and prevention of trespass. At one point he noticed a man whom he described as being of his own size and height walking parallel to him on the Company’s property. The man hurried away and the constable called after him, “Hold it a minute, sir”. The constable admits that he did not identify himself as being a police officer. At a distance of three to six feet from Constable Maxmenko, the trespasser in question stooped, picked up a rock and held it over his head in a threatening manner. At this point, constable Maxmenko realized that the man in question was older than he at first appeared. The constable drew his revolver (a. 38 Smith & Wesson) from his unopened holster and, with his finger on the trigger, pointed the revolver at his adversary, who has since been identified as Mr. Poole. The constable testified that he was frightened of serious bodily harm. After Mr. Poole dropped the rock, the constable replaced his service revolver in the holster. Mr. Poole explained that he had poor eyesight, had been drinking and that he had not noticed the constable’s uniform and thought he was about to be attacked and robbed. As a result, Constable Maxmenko allowed Mr. Poole to leave. Later, the constable noticed Mr. Poole again trespassing on the tracks in the same vicinity. He placed Mr. Poole under arrest, a minor scuffle ensued and when Mr. Poole attempted to strike a blow the constable pushed him to the ground and sat on him until a witness was able to summon the Metropolitan Toronto Police Force.
A complaint was lodged with the Company by a Mr. And Mrs. Tavaras, who had been accosted by the constable prior to the first encounter with Mr. Poole, also as alleged trespassers, and had explained their presence as being due to Mr. Tavaras’ employment with the Express Food Wholesale Ltd., whose premises border the Company’s yards. Indeed, Mrs. Tavaras’ statement indicates that her husband was accosted while actually inside the gates of the Express Food warehouse and not on company property. In any event, the Tavarases apparently witnessed and reported the first confrontation with Mr. Poole.
The Company claims that Constable Maxmenko violated service regulations when he drew his revolver in the circumstances, that the manual of instruction for constables clearly sets for the following on the subject of firearms:
“ FIREARMS
A member of the Department may fire his revolver, while in the performance of his duty, only in the following circumstances:
(A) To defend himself from death or serious injury;
(B) To defend another person, unlawfully attacked, from death or serious injury.
Revolvers are issued to members of this Department, for defensive purposes, that is, to protect them from death or serious injury from an armed assailant, and any member who fires a revolver without cause will be disciplined.
When going off duty, members of the Department must unload their revolvers on arrival at place of residence where revolvers and cartridges must be stored separately, in a secure place. They must also reload their revolvers before leaving place of residence to take up duty. Special care must be exercised by members of the Department in safeguarding of weapon and ammunition at place of residence.
It is forbidden, while on duty, to carry a firearm other than the regular issue.”
and that Constable Maxmenko was under no serious fear of death or injury when faced with a middle-aged drunk, whose rock Constable Maxmenko could have avoided by dodging or by increasing the distance between himself and his potential assailant
In mitigation, Constable Maxmenko claims that his observations as to Mr. Poole’s state of intoxication and actual age were only made after the initial confrontation, in which Mr. Poole made his threatening gesture. It was pointed out on the grievor’s behalf that the regulations on firearms reproduced above, relate to firing the revolver, not to drawing it and, of course, Constable Maxmenko did not fire his revolver. Inspector Gilroy, appearing for the Company, admitted that it was impossible to lay down hard and fast rules stating that the use of a service revolver was a judgment call and a question of circumstances. Nevertheless, he concluded that he would not have drawn his revolver in the circumstances, in view of the alternatives available, which included avoiding the range of the rock or talking the subject into a somuntary submission. Sgt. Georges Gauthier, a Shooting Instructor with the Montreal Urban Community Police, stated that it was not a clear case of abuse and that in the circumstances, admitting that second guessing is virtually impossible in the situation, he would have drawn his gun, however, he faulted Constable Maxmenko for keeping his finger on the trigger.
Assessing discipline in a case of this kind is most difficult. Bearing in mind that trespassing on the property of the CPR is hardly a capital offense, it appears that Constable Maxmenko acted precipitously in reaching for his gun, finger on the trigger, at the instant he perceived the slightest danger. While entitled to protect, and armed with a revolver for the purpose of enabling him to apprehend offenders, a railway constable does not have a license to risk the lives even if offenders where not absolutely necessary. While a constable is under no constraint to wait until he is set upon and beaten before protecting himself, the degree of discernment expected in evaluating the subject whom he accosts for trespassing is one of the attributes implicit in his appointment. A shooting, even if accidental, would have been abusive in the circumstances and Constable Maxmenko took that clear risk when he drew his revolver.
The Company’s disciplinary measure took into account constable Maxmenko’s previous record involving driving a car in a manner so as to strike a pedestrian, failure to appear at the Company’s solicitors’ offices when required and being on duty without his gun and handcuffs. I am not prepared to vary the penalty imposed by the Company.
The grievor’s complaint as to the nature of the hearing conducted by the Company remains to be dealt with. Article 10.02 of the Collective Agreement reads as follows:
“10.02 An employee shall be given an advance notice of five working days of such hearing and be advised in writing of the time, place and subject matter of such hearing. An employee may have a fellow employee or a member of the Association present to assist him. The employee shall be furnished with a copy of his statement and copies of all evidence taken at the hearing and shall be present during the examination of any witness whose testimony may have a bearing on his responsibility. He may offer rebuttal evidence thereto.”
The Company claims that it had no means of compelling the presence of Mr. and Mrs. Tavaras at a hearing held for Company internal disciplinary purposes and that it was nevertheless entitled to take the statements of Mr. and Mrs. Tavaras which were introduced as Exhibits C-3 and C-4 respectively and to use the same against Constable Maxmenko, subject to furnishing him with copies (which they did). If there was any failure to comply with Article 10.02, it was that Constable Maxmenko was not permitted to be present during the taking of the statements of Mr. and Mrs. Tavaras, which occurred prior to the hearing in question.
I do not believe that the Article requires the Company not proceed with disciplinary charges when a third part witness, although prepared to make a written statement to the Company authorities, is not prepared to appear at an internal disciplinary hearing. The statement may influence the company but the arbitrator is the ultimate judge of all issues of fact and Constable Maxmenko could easily have protected himself by availing himself of the provisions contained in the Canada Labour Code relating to the compulsion of witnesses, and I have noted that the Association did not request a subpoena for the Tavarases. In any event, nothing appears to have turned on the Tavarases. In any event, nothing appears to have turned on the Tavarases statements since the facts therein related are not the contested aspect of the issue. They report the incident in roughly the same terms as Constable Maxmenko himself. The issue turns on the appropriateness of his reaction and nothing in the defense is in the slightest influenced by anything contained in the statements of Mr. and Mrs. Tavaras. I therefore find that no irregularities occurred in the eternal disciplinary measure imposed y the Company as not having followed the required procedures. For the foregoing reasons, the grievance is rejected for all legal purposes.
DATED at Montreal, Quebec, this 13th day of October, 1978.
Stanley H. Hartt