AH Ė 302

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN NATIONAL

(CN)

AND

THE CANADIAN NATIONAL POLICE ASSOCIATION

(the "Union")

IN THE MATTER OF THE GRIEVANCE OF MR. G.T.

 

 

SOLE ARBITRATOR: Me. André Sylvestre

 

There appeared on behalf of the Company:

Me. Raynald Lecavalier Ė Counsel

 

And on behalf of the Association:

Me. Gine Castiglio Ė Association Counsel

 

AWARD

EVIDENCE

On July 3, 1990, Mr. Saunders, Superintendent of the Western Canadian region, informed G.T. that he was suspended. on the following grounds:

Effective immediately you are suspended from service in accordance with article 14.12 of Agreement 28:01, for the following reasons arising out of an incident occurring May 28, 1991:

As per the CN Police Instructional Manual, Article 4.1.3 (Discipline).

5) Immorality, Indecency or Lewdness

7) Falsifying any information or report

8) Neglect of duty

9) Absence from duty, post or assignment, without permission

14) Any act or omission contrary to good order and discipline

16) Violation of any rule or order of the Canadian National Railways.

You will be advised of a hearing date.

On July 24, 1990, Mr. Saunders notified G.T. that he was dismissed, on these same grounds. On August 19, Mr. Greer, Vice-President of the Association, progressed the grievance to Step III in the following letter to Mr. Danylewich, CN Police Chief:

RE: Grievance Step #3 28.1 Constable G.T. Vancouver B.C. Discharged from Company service July 24, 1990.

The CNRPA has reviewed the file in regards to the discharge of Constable G.T. It appears that Constable G.T. did not have a fair hearing. He was denied the opportunity to know the evidence against him sufficiently in advance of the hearing.

All the evidence appears to be hearsay, (e.g. calls from Vancouver City Police). No documents were presented even from the woman who made the allegations, there is no report or statement.

Constable G.T. has 25 yearsí service with the police department. He has been very open about the case. The CNRPA has referred Constable G.T. to the CN Employee Assistance Program in Vancouver, B.C. so he can get help for his problem, which he is very willing to do.

At no time did the police department ask if he had a personal problem or refer him to the EAP which seems to be Company Policy for all employees.

The Association asks that the case be reviewed and that Constable G.T. be placed back into service with the police department.

On September 5, Chief Danylewich replied to Mr. Greer:

In reply to your letter of grievance dated August 19, 1990 under step three on behalf of former Constable G.T., Vancouver, B. C.

Constable G.T.ís hearing pertained to the alleged violation of departmental rules and regulations and he and his representative, Constable D. Dyck were provided with all relevant evidence in accordance with the collective agreement. They were further allowed, by the presiding Company officer, the time necessary to review the material prior to the commencement of the hearing.

Having reviewed the matter, I find no discrepancy in the handling of the hearing nor the evidence adduced and consequently must respectfully decline your grievance.

On October 1, Mr. Greer progressed the grievance to Step IV, in the following letter to Mr. Fraleigh, head of Labour Relations:

RE: Grievance Step #4 28.1. Constable G.T. Vancouver B.C. discharged from Company service July 24 1990.

The CNRPA received a letter dated Sept. 5/90 in regards to Grievance submitted at Step #3 from CN Police Chief P. Danylewich. The Association is not satisfied with the answer from the Chiefís office.

All the evidence was not presented at the hearing of Constable G.T. or the Association, no documents were presented, there wasnít even a report from the Vancouver City Police or a report or statement from the woman who has made all these allegations against Constable G.T.

At no time did the Company address the problem to see if he has a personal problem that caused the investigation to take place, nor did the Company make any attempt to refer Constable G.T. to the EAP Program which seems to be Company Policy for all employees The Association has assisted him in seeing the EAP representative in Vancouver, B.C.

Constable G.T. is presently under his doctorís care for his problem. At this time it appears that Constable G.T. has a medical problem which has caused all the problems. It seems that this problem happens to a lot of men in his age range, he is more than willing to get help for his medical problem and is getting treatment at this time. Constable G.T. is 54 years of age, with 25 years of service with CNR. Following an investigation by Vancouver City Police charges were laid and March/91 has been set for the court date.

The Association asks that the case be reviewed and that Constable G.T. be placed back in service with the CN police department.

Mr. Fraleigh replied to Mr. Greer some time later:

Re: LR 8328-1-14-50

Kindly refer to your letter dated October 1, 1990, received in our office on October 11th, concerning a grievance submitted at Step Number Four of the grievance procedure on behalf Constable G.T., PIN 757124, of Vancouver, BC, who was dismissed from Company service, effective July 24, 1990. Time limits for the Company to respond to your submission were extended to January 15, 1991, by mutual agreement.

On July 12, 1990, a disciplinary hearing was held at Edmonton by CN Police Superintendent Saunders regarding the alleged involvement of Constable G.T. in matters that were both illegal and incompatible with his employment as a peace officer, during the course of his tour of duty on May 27, 1990.

During this hearing, Constable G.T. admitted to the Investigating Officer that while on duty, he had picked up an unauthorized passenger in his patrol car, had driven her to Company offices during the night where, for a fee, she had performed various acts of a sexual nature.

The woman later filed charges of sexual assault against Constable G.T., claiming the grievor was inebriated and had threatened her with his service revolver. Constable G.T. did not admit to the latter charges at the disciplinary hearing. His trial date has tentatively been scheduled for March 14. 1991.

In its Step Number Four submission, the Association asserts that the investigation conducted into this matter was not proper and that given the age and long service of the employee, the Companyís disciplinary response was too harsh. The Association further suggests that the Company should have afforded Constable G.T. the opportunity to enter the Employee Assistance Program in order that he may attempt to resolve his problem.

Let us first deal with the assignment made by the Association that the Company should have referred the grievor to the Employee Assistance Program, (EAP) when the events of May 29, 1990, came to light. The Companyís EAP policy stipulates very clearly that "Ö nothing contained in this policy is intended or should be construed to limit the continuing responsibility of management to discipline employees that violate the rules or regulations describing standards of conduct Ö" In other words employees cannot use the EAP as a shield against disciplinary action should they commit infractions which warrant some measure of discipline.

The EAP was at all times available to Constable G.T. prior to the incident of May 27, 1990 and he should have availed himself of the opportunity to participate if he believed doing so might be helpful to his "condition". It is the Companyís position that the grievor simply could not, at a later date, enrol in the Employee Assistance Program, in order to claim immunity from disciplinary action.

In the matter of the appropriateness of the investigation. The Association has suggested that Constable G.T. was not provided with reports from the Vancouver City Police at the outset of the hearing, nor was he provided with a copy of the statement given by the woman who made the allegations against him.

As you well know, incident reports prepared by a police force, as well as depositions secured from witnesses in the course criminal investigations, constitute evidence which is kept under Crown custody until it is decided whether or not criminal charges will be laid. This is standard procedure, designed to avoid compromising or otherwise jeopardizing the Crownís case.

During the investigation into this matter, the Company did not have access to the Vancouver City Police report or the statement obtained from the witnesses, and this potential evidence was therefore not "recorded" against the grievor during the disciplinary proceedings. Rather, in order to make out its case, the Company relied on documents prepared by the CN Police, recounting the events as described by members of the Vancouver City Police to CN Police Inspector Cornford or as described by the grievor himself to Lieutenants Held and Pallick, when they hand-delivered the notice to appear at the disciplinary hearing.

In the past, arbitrators have ruled that the type of evidence described above is entirely admissible, given the impossibility of obtaining police reports kept under Crown custody. To that effect, you may wish to consult the attached decision number [CROA] 1538 rendered by Arbitrator David H. Kates in the Canadian Railway Office of Arbitration.

In determining the grievorís responsibility in this matter, the Company relied solely on the grievorís own admission of wrongdoing and on the evidence described here above which was "recorded" against Constable G.T. and which the grievor had an opportunity to call into question Ö which he did not do. Therefore, the grievor was indeed provided with the evidence "recorded" against him at the outset of the investigation, thus satisfying the requirements of the collective agreement.

Given the evidence and the grievorís own admission of wrongdoing, it is clear that Constable G.T. subjected himself to some measure of discipline for his actions and indeed, the only other issue which need be addressed in this matter is that of the severity of the Companyís disciplinary response.

It has long been held that trust is at the very heart of every relationship, including that which develops between employer and employee. When that trust is breached to the extent that it causes irreparable damage to the employment relationship, then it is open to either party to terminate the employment contract, whether such contract be explicit or implicit, as in this case.

By his actions, the grievor has breached the trust the Company has put in him and in so doing, has brought discredit to both himself and to the CN Police. In these circumstances, arbitrators have held that dismissal is an appropriate disciplinary response.

When he hired on with the CN Police in 1965. Constable G.T. took an oath to uphold the law and cause the peace to be kept. His actions of May 27, 1990, are totally incompatible with the duties and responsibilities a peace officer is expected to discharge in the course of his employment.

In arriving at a decision to dismiss Constable G.T., the management of the CN Police took into account the grievorís age and long service with the Company as a possible mitigating factor to substitute a lesser penalty to that of discharge. However, it quickly became apparent that given the nature of the grievorís wrongdoing, Constable G.T. could only be returned to active service provided the Company could exercise very close supervision of this employee.

Unfortunately, in his capacity as a CN Police Constable, the grievorís principal job function consisted of patrolling CN property, a task which does not easily lend itself to the close supervision which the grievor would have required. Alternatively, there was no other position available for which the grievor would have been qualified and where he could have been closely supervised. Consequently, the decision was made to dismiss the grievor.

Therefore, for all of the reasons stated above, we have no alternative but to reject your grievance and must maintain the dismissal of G.T.

The first witness to testify was Superintendent Saunders. He is based in Edmonton, and is in charge of operations over a territory comprising Northern Saskatchewan, Alberta, British Columbia and the Northwest Territories. He joined the Company in 1956, worked as a constable for 20 years, was promoted to lieutenant in 1977, to inspector in 1980, and became assistant superintendent in 1985 and superintendent in 1986. In 1990, some 40 police officers were working under his orders, consisting of constables, lieutenants and inspectors. In April 1991, the Department eliminated certain senior positions and created a new position of special agent. Until then, constables had been assigned to patrol duties, and subject to minimal supervision, working in a police uniform and equipped with a firearm and handcuffs. The position of special agent was created in the reorganization of 1991. Special agents, until then constables, now report to an inspector, rather than a lieutenant, and may work in plain clothes or in police uniform. They are considered specialists in police work, and operate much more independently than constables. They are responsible for making decisions and taking action themselves. All the constables in the Western Region were made special agents. Their salaries increased to reflect the greater responsibilities they assumed. There are differences between the CN Police and a public municipal, provincial or federal police force. At CN there are only four levels, while there are many more in a public force. The ten or so remaining constables in the CN Police are stationed in Halifax, where they act as wards and perform certain related duties. It is understood, however, that these positions will be abolished as they fall vacant.

Superintendent Saunders then discussed the case in question. G.T. was one of his constables assigned to Vancouver at the time of his dismissal where he was responsible for patrolling the territory in that district and seeing to security. He was a senior constable, and knew what he had to do and could work without supervision. He was equipped with handcuffs and a firearm, worked in uniform, and travelled around his territory in a patrol car identified with the CN Police name. His seniority went back to 1965. Before he was hired, he had had to complete a questionnaire to evaluate his general knowledge, and to write a short essay of 400 words on his reasons for wishing to become a constable. In the questionnaire, he answered these questions as follows:

16. Why do you wish to become a policeman?

I wish to become a policeman because it affords a person the opportunity of a lifetime career and also an interesting one.

17. Have you any knowledge of the art of self-defence? (If so, give particulars:)

Very little.

18. Give briefly, in your own words, the definition of the word DISCIPLINE.

Discipline is a way of life or a set of rules that one must follow.

19. What, in your opinion, is the reason for strict discipline to a police force?

A police force must have discipline for several reasons one to maintain the confidence and trust of the public and two would be to ensure that a standard procedure is followed in all cases.

20. Why should a police officer not partake of alcoholic beverage while on duty, or before going on duty?

The consumption of alcoholic beverages dulls ones mind and slows down the reaction time of the person.

At the time he was hired on August 23, 1965, he had to swear this oath:

CANADIAN NATIONAL RAILWAYS

Magistrateís Certificate of Constableís Oath

We, R.D. Mowat and V. Vince, Justices of the Peace in and for the city of Toronto pursuant to the powers invested in us by the Railway Act, do hereby appoint G.T. to act as constable upon and along the lines of the Canadian National Railways, the said person having taken before us the oath prescribed by section 456 of the said Act.

I, G.T., having been appointed a constable to act upon and along the lines of the Canadian National Railways under the provisions of the railway act do swear that I am a British subject: that I will well and truly, serve our Sovereign Lady the Queen in the said office of constable without favour or affection, malice or ill-will: that I will to the best of my power cause the peace to be kept and prevent all offences against the peace, and that while I continue to hold the said office I will to the best of my skill and knowledge discharge the duties faithfully thereof, according to law.

So help me God.

Sworn before me at the city of Toronto in the county of York this 23rd day of August A. D. 1965.

At the same time, his superiors gave him the CN Police officersí Instructions Manual, which he was to read and apply, and copies of the collective agreement and the collection of internal directives relating to police ethics.

On July 3, Superintendent Saunders informed the complainant that he was suspended, effective immediately. Several days earlier, Mr. Saunders had received a call from one of his assistants, Inspector Cornford, informing him that he had just learned that G.T. had been or would be charged by the Vancouver Police Department with sexual assault. The complainant, while on duty, had reportedly solicited the services of a prostitute, taken her into his patrol car, performed certain acts in the duty office and driven her back to her neighbourhood. Inspector Cornford was to continue his investigation. The witness then drafted and signed the letter of suspension, and on July 9, summoned G.T. to a hearing at the Vancouver offices:

Pursuant article 14.7. Agreement 28.01, you are requested to appear at a hearing on Thursday, July 12, 1990, at 10:00 hours to be held at the CN Police office, Room 104, CN Station, in answer to the following charges as per CN Police Instructions Manual, Article 4.1.3:

5) Immorality, Indecency or Lewdness

7) Falsifying any information or report

8) Neglect of duty

9) Absence from duty, post or assignment without permission

14) Any act or omission contrary to good order and discipline

16) Violation of any rule or order of the Canadian National Railways.

In accordance with the memorandum of agreement, Addendum No. 6, Agreement 28.01, you may have one or two accredited representatives appear at the hearing with you.

The hearing was held on July 12, in the presence of a representative of the Association. The transcript of the hearing reads as follows:

Q. Have you been properly notified of this formal hearing?

A. I was given 3 daysí notice. Yes.

Q. Do you wish to be represented by accredited representative? If so, would you please identify him?

A. Darren Dyck, Secretary-Treasurer, Vancouver Local #1

Q. Are you ready to proceed?

A. Yes we are ready to proceed.

Q. Please state your full name, age, PIN number and record of service.

A. G.T., 54 years old, 757 124, 24 years 11 months.

Q. I have given you copies of:

1. Daily activity report for 27/05.90 as submitted by you.

2. Inspector A.L. Cornfordís report dated 9 July, 1990 relating to your alleged actions during your shift of 27 May, 1990.

3. Photograph of a female standing with her blouse held open to expose her bare breasts.

4. Lieutenants Held and Pallickís report dated July 06, 1990 concerning events relating to alleged charges.

5. Acknowledgment sheet concerning regional directives BI to B39 signed by you and dated 1987/11/10.

6. Regional directive B5 dated 86/09/01 concerning Police Ethics.

7. Regional directive Bl dated 86/09/01 concerning "Persons authorized to ride in patrol cars".

Is this correct?

A. Yes

Q. You were assigned to the 1900-0700 hr shift of May 27-28 covering Vancouver Patrol in patrol unit 100?

A. Yes

Q. Is this the daily activity report submitted by you of that tour of duty?

A. Yes

Q. Would you describe your activities from 0330 to 0500 hrs during your assignment?

A. I went from south end of Thornton Tunnel to the top of the cut. Then I patrolled over the various intersections of the cut checking some of them from the closed roadway, others from the roads that pass over it. At Commercial I proceeded up to Broadway by and along Broadway to Main and before reaching Main I seen this unknown female was a prostitute and I made a deal with her to take her picture.

Now perhaps it would be easier if I were to admit to having the girl in the car, taking her to the office, having oral sex with her and driving her back. I admit these things, and I am sorry. I have been worrying about it ever since, and right after letting her out of the car, I realized it was something I shouldnít have done, not only for the office but for my wife.

I admit to the fact that I have done it.

Q. I would like to give you the opportunity to answer some of the questions we have already outlined, to give you a better opportunity to answer more in depth.

A. Is it your intention to proceed with each individual charge as outlined in the memo of July 3,1990, and July 9, 1990?

Q. No. I gather the information obtained at this hearing and report to the Deputy Chief with recommendations. Is that understood?

A. The evidence that you have presented in these documents is not true in their entirety.

Q. My reply is that the purpose of this hearing is that for you to either refute the evidence or support it.

Were you in uniform at that time?

A. Yes.

Q. You already stated that you conveyed this female to this police office in your patrol car. Patrol Car 100 is a marked unit with CN logo and Code 3 emergency roof lights, is that correct?

A. Yes.

Q. You state you paid her to perform sexual services?

A. Yes but not as outlined in the evidence handed to me.

The information in the evidence says that I spoke to the prostitute and made a deal for oral sex. And that is not correct the deal was for a picture, for taking her picture, which she agreed to. I drove her to the office where she disrobed and I took one picture, as was agreed upon. At that time I thought I would like to have oral sex with her for which she wanted another 40 dollars. As all I had was a 50 dollar bill, I gave it to her and she did not give me the change. The female stated that I was supposed to have a bottle of liquor under the seat and that I was supposed to have a couple of drinks, this is totally incorrect. I did not have any liquor prior, or during my shift.

Q. You state that you did take a photo?

A. Yes.

Q. Is the copy of the photograph provided you here the one of the female you took at that time?

A No.

Q. 0k. Would you explain under what circumstances you came into possession of this picture?

A. That picture was found in a desk in the downstairs police office and I canít remember the exact circumstances, because it was several years ago, but I believe we were to get, meet one of our female members for coffee so I picked up and put it away so that she wasnít to see the picture and then put it in my locker prior to going home. And then forgot about it. I donít know who the woman in the picture is, it has been several years.

Q. The picture that you took in the police office on this occasion, was it of a sexual nature ?

A. No. The picture was the woman without showing her face and of her nude body.

Q. Would this picture be sexually explicit?

A. No.

Q. So it is a photo of a nude woman, not showing her face?

A. Yes. She may have been holding her breast.

The city police had questioned me shortly after receiving the alleged complaints rather than 10 days. I would have still had the picture.

Q. Do you wish to introduce the picture to the hearing?

A. No I donít have it. I shredded it in that shredder. I believe it was either at the end of the previous block. It was just a few short days when the city police approached me.

Q. You stated that after this female had performed these services, you conveyed her near the area where she was picked up. So this would be approximately 05:00 when you dropped her off.

A. Yes.

Q. So this is a true and accurate account from 03:00 to 05:30 hours during this tour of duty.

A. It was closer to 05:30 because the restaurant was open.

Well I thought the charges were excessive. I think, not that I am not disagreeing with them, but if you wanted to assess punishment on them, there was six charges and if you were being very generous in assessing demerit marks, awarding only 10 for each charge, it still totals 60, which means dismissal. That is something that I do not want to see happen.

Q. I refer to the copy of the acknowledgment that states you have read and understand departmental directives B1 to B39. Is this signature of acknowledgment your signature?

A. Yes.

Q. Are you fully aware of the content of the noted directive B05 covering police ethics?

A. Yes.

Q. Are you fully aware of the content of regional directive B11?

A. Yes.

COMMENT BY CONSTABLE G.T.

The evidence that is shown in both of these letters are not exactly correct as to the happenings and the sequence of events.

Q. You refer to both letters which are in fact reports. The one report to inspector Cornford from Lieutenantís held and Pallick, and Inspectorís Cornford report to me.

A. Yes.

Q. Would you like any of the individuals involved in writing the reports to be brought in to the hearing so you may ask questions of them?

A. No it is, UH, I just wanted it noted in the statement that they are not true in their entirety.

Q. But can you elaborate on the alleged inconsistencies within their respective reports?

A. If you want.

Q. If you feel that the information would be relevant to this hearing, I ask you to do so.

A. Well, what did we say Darren, Itís Ö Iíve said that some of the things in here are not trueÖ The female stated that I had a bottle of liquor. This is not true. The only true parts of the report of the allegations or what have you is that I picked her up, drove her to the office, took the picture, had the oral sex, drove her back to the area where I picked her up. None of the other allegations by her are true.

Q. Are you satisfied that this has been a fair and impartial hearing?

A. It is different than any hearing I have had before, or attended. It has been more thorough. It still leaves me nervous.

Q. But has it been a fair one and impartial in your opinion?

A. I canít express an opinion. I really canít.

Q. What do you feel has been lacking of this hearing to not make it fair or impartial?

A. It is UH like I said, I have never seen one as thorough, like when we went over each point. You have only left out absence from duty without permission.

Q. Because you feel that this hearing has been thorough from the hearing officerís point of view and you and your representativesí point of view why would it not be considered to be fair and impartial?

A. I have not said that it was. I have not said it wasnít. Letís leave it at that.

Q. Can we conclude that it served your purpose?

A. How do you mean "served my purpose"?

Q. This is your hearing.

Constable G.T. and his representative conferred from 11:35 to 11:40.

Continue again at 11:40.

A. I suppose what is bothering me is what the results of this hearing will be, not the hearing itself. You could say that it has been a fair hearing, but it has been totally different from ones that I have attended in the past, which leaves me with total confusion about what the conclusion will be.

Q. Is there anything else you wish to add?

A. Well, I am sorry that it happened. I give my word that it wonít happen again. And UH, it was a very foolish and stupid thing to do. I realized that after doing it. And it has bothered me ever since, about doing it. After it happened, I had this funny feeling, I donít know how to describe it, that that woman would do something, and she did. And I cannot explain this but I knew.

Should I be given the opportunity, it will never happen again.

Q. Is your representative satisfied that this has been a fair and impartial hearing?

A. Yes.

Q. Is there anything that your representative wishes to add?

A. Yes there is. There are a few points Iíd like to mention. First of all regarding the evidence produced. Is exhibit no. 3 a photograph, it appears to have been taken in front of a cinder block wall, of which there is nothing of the sort in the depot area, which would lend support to G.ís side, as to where the photo came from. Secondly, regarding charge no. 9, here, being absent from his duty post or assignment, we feel that G. was on his lunch break at the time and not further than a usual distance that he would be at any other time from his assignment and was prepared to answer any calls at the time.

Thirdly, is the fact that the accuser in this matter canít be questioned. And I would think that combined with the background she is associated with should tend to cast strong shadows of doubt on her accusations.

Regarding the discipline assessed, I think it would be worth noting that G.ís demeanour shows obvious regret as to this incident and he has shown in the past that he is a valuable employee, what with high statistics, low sick time, and exemplary service medal, and would hope that all these factors all be taken into consideration when discipline is assessed.

And lastly, while I am completely positive that everyone is completely familiar with the disciplinary procedure I would just like to quote from file Personnel Manual Section 18 on corrective discipline article 2.1.1. where it states:

System of discipline must achieve the following objectives, mainly part 1, facilitate the acceptance by supervisors of the principal of imposing the minimum penalty that will achieve the necessary correction.

And in conclusion, it appears that G. has learned from his mistake and there is nothing that would lead one to believe any such incident would occur again.

And in keeping with section 2.1.1, I would think a minimum penalty would be appropriate in this case.

Hearing concluded at 12:00 hours.

The hearing lasted two hours, from 10:00 a.m. to noon. Following, the hearing, Superintendent Saunders left Vancouver for Edmonton. He was to decide on the appropriate discipline to be assessed to the complainant. On the basis of the information gathered. He was deeply shocked that a senior constable, in uniform and at the wheel of a car bearing the CN Police name, had violated his oath of office by deliberately abandoning his post to solicit the favours of a prostitute, take her to the CN Police offices and there engage in sexual activities.

The CN Police is present throughout Canada and all its members must work very closely with officers of other public police forces. G.T., by his actions, had led the Vancouver Police Department to investigate, and in so doing had seriously harmed the credibility of his colleagues working in that city, in fact throughout the country. In view of these circumstances, the witness concluded that the most severe discipline should be assessed to G.T. It was necessary to do so in order to attempt to re-establish the Departmentís credibility with other police forces and to send a very clear message to all CN Police officers throughout the country, that such actions would not be tolerated. Furthermore, there was no question of allowing the complainant to remain in his position because, as a senior constable, he was obliged to serve as an example for more junior members and could no longer do so. Finally, as a constable, he would have to assume very important responsibilities, unsupervised, and it was impossible to have confidence in him in future. All these factors together led the witness to sign the letter of dismissal dated July 24.

Superintendent Saunders was cross-examined. Inspector Cornford took the initiative of undertaking and pursuing the investigation in this case, and of obtaining the relevant information from the Vancouver Police. The inspector informed him of the complainantís actions on about June 26, one week before the notice of suspension was issued. Following the summons to the disciplinary hearing for July 12, no one had asked the Superintendent to postpone the investigation. However, on July 11, he received this note from Constable Wizen:

Mr. G.T. has asked me to represent him at this hearing. However, in order to prepare for this we need the following information:

a) The reasons for Constable G.T.ís suspension;

b) A break-down of the specific charges (written details of each);

c) Copies of all evidence thatís to be presented;

d) List of all witnesses that were be presented evidence.

Taking all of the above into consideration, we request a postponement of this hearing (July 12th, 1990) for the purpose of preparing the best possible defense of Constable G.T.ís position, and also to have legal representation at the new hearing. Suggested times for new hearing dates: July, 24, 25, 26, 27th, 1990.

The witness remembered this specific request, to allow time to consult the evidence. In fact, after receiving this letter, he followed the provisions of the collective agreement. On July 12, at the beginning of the hearing, he gave the complainant and his representative all the evidence he had in his possession. The transcript of questions and answers was prepared by a secretary hired for this purpose. He was aware that a criminal charge was to be brought against the complainant. In fact, the charge was brought after the dismissal, and was withdrawn several months later, although the witness does not remember why. In any case, this factor was irrelevant in his decision. The dismissal was not a result of the charge. In July 1990, the reorganization program was already under study, and called for the abolition of a good number of positions. The Department called the CN police officers in the Vancouver region to a meeting at that time, to inform them of what was happening with the reorganization. The witness called the complainant to ask him not to come to the meeting, since he was suspended and his presence would be embarrassing for him and the other participants. This conversation took place following the suspension, but before the hearing. The witness was not senior enough to know how many positions were to be abolished. He acknowledged that nine constable positions and three inspector positions were later abolished in his region. He did not know how many other jobs were abolished as a result of early retirement, but was aware that constable positions were abolished in his region and that a lieutenant position was not filled after its incumbent was promoted to inspector. The same applied in Vancouver, where a position was not filled and was later abolished. Finally, the witness was unable to state whether the complainantís position was affected by the application of the plan. He was familiar with the "85" rule for early retirement, whereby a department member would be eligible for early retirement when the sum of his age and years of service totalled 85. Superintendent Saunders submitted his recommendation of dismissal to Mr. Furber, the senior Superintendent for Western Canada, who was to discuss the case with Chief Danylewich and his advisors. Permission was later given to proceed with the dismissal. In Superintendent Saundersí judgement, this penalty was the only one possible, in the circumstances, owing to the serious nature of the constableís actions. The witness eliminated all other solutions, including a long-term suspension. He wished to uphold the image of the department, and it had to be considered that the complainant was working unsupervised and had violated his oath of office. He never inquired into the standards applied in similar cases by other public police forces, since their regulations are different and cannot apply to the CN Police Department. The latter is a private police department covering all of Canada, rather than a public force operating in a single municipality. At the hearing on July 12 witnesses were available, and Mr. Saunders suggested to the complainant and his representative that they could call witnesses to comment on different documents, but they refused. The senior managers never contemplated making any arrangement for the complainant to retire.

Superintendent Saunders was questioned again. At the time of the hearing on July 12, he did not have in his possession any documents from the Vancouver Police Department relating to the criminal charge. His decision was based solely on the results of the internal investigation. On July 16, he sent the following letter to Superintendent Furber:

On Thursday, July 12, 1990 a formal hearing for Constable G.T. was held at 10:00 hours in the CN Police Office, Vancouver, B.C.

Constable G.T. was charged with the following alleged offences under discipline article 4.3.1, CN Police Manual:

(5) Immorality, Indecency or Lewdness

(7) Falsifying any information or report

(8) Neglect of Duty

(9) Absence from Duty, Post, or Assignment without permission

(14) Any act or omission contrary to good order and discipline.

(16) Violation of any rule or order of the Canadian National Railways.

Information received from Vancouver City Police by Inspector Cornford indicated that on May 28, 1990 at approximately 04:00 hours Constable G.T. while on duty, picked up a prostitute and conveyed her to the police office in the CN station where he paid her for oral sex and also to photograph her in the nude.

Although there were further accusations by the prostitute, i.e., that Constable G.T. allegedly smelt of alcohol and had taken a drink while conveying her to the Police Office, and that he had allegedly used his service revolver to acquire the sexual service: these matters were not dealt with at the hearing as Vancouver City Police are contemplating Criminal Charge(s).

During the hearing, Constable G.T. admitted to engaging the prostitute for the purpose of photographing her and then for oral sex for which he paid her a total of $90.00. He voluntarily denied drinking or having liquor in the patrol car. He also attested to fact that he understood the contents of Regional Directives B 5 (Police Ethics) and B 1.1 (Persons Authorized to Ride in Patrol Cars).

As a result of the hearing it is obvious that the charges brought against Constable G.T. are appropriate by his own account of the incident.

In his summation, Constable D. Dyck, representing G.T., expressed a consideration towards leniency in the discipline assessed Constable G.T. due to his productivity record as well as his low sick-leave record. These matters were considered and records indicate an average level of performance and attendance.

As our members generally perform their responsibilities unsupervised, management, as well as CN, places a great trust that these duties are consistent with the policies of the Department and the interests of CN as being paramount in these executions. Anything less is unacceptable. In the case of Constable G.T., the expectations are greater in that he is a senior member and must set an example to less senior and younger members as on occasion he may be in a position of directing and counselling these members.

After reviewing the evidence presented from all sources, it is recommended hat the services of Constable G.T. be dispensed with.

Please find copies of all relevant documents attached.

In the above document, Superintendent Saunders did not bother to consider the prostituteís accusations that were contradicted by G.T. The constable had admitted to the essential points of the charge, but had always denied that there was liquor in the office or the car, and that he had threatened her with a firearm. Incidentally, it was the latter complaint that led to the criminal investigation. The complainant had vehemently denied these two accusations.

Inspector Cornford then testified. At the time of the dismissal he was assigned to the British Columbia District, and has since retired. He met G.T. in 1983, when the latter arrived in Vancouver. The witness was responsible for assigning his personnel, with assistance from his lieutenants. On May 27, 1990, G.T. was assigned to the 19:00 to 07:00 shift in the Vancouver district. His orders were to pick up the patrol car at the depot at the beginning of his shift, and check whether the dispatcher had any special jobs for him to do. He then had to visit different stations and yards in Vancouver, North Vancouver, Burnaby and Richmond, and patrol the premises. He was also to respond to calls and remain in radio contact with a colleague. He was to wear a uniform and drive a patrol car, and carried all the equipment of a police officer. He was to cover his own district on his own, while a colleague would cover the Surrey district territory, 80 miles from Vancouver. He was to complete a record of his activities as they occurred, and sign it at the end of his shift. At this point, the witness commented on the report for the night of May 27, signed by the complainant. According to the report, the complainant had completed his inspection of the building on Evans Avenue at 02:00. At 02:40, he was at Waterfront. He left there at 02:45 to go to North Vancouver and Burnaby, until 03:30. He returned to Vancouver at 04:00, and patrolled in the yard until 05:00. He took his meal break from 05:00 to 05:45. In the yards, he was to inspect the trains, the seals on the cars and containers, and ensure that the numbers matched. Between 03:30 and 04:00, he was to check the system of gates on CN level crossings, and ensure that they were in good working order. Between 04:00 and 05:00, he had to inspect the yard again, checking the seals and general security. Between 02:35 and 3:30, he was to check the security of the tunnel in Burnaby and North Vancouver. His work was basically to oversee the security of CN property.

On June 27, Inspector Cornford was acting as the officer in charge of the region when Detectives Kilpatrick and Prenzl of the Vancouver Police Department came to his office at 11:50. They informed him that they suspected a member of the Department of involvement in a sexual assault incident committed in an office of the station. This was the first time that Inspector Cornford had heard anything about the case. They asked him for the name of the constable on duty on the night in question, and then asked to visit the office where the incident had allegedly occurred. The incident reportedly occurred during the night of May 27-28, between 04:00 and 05:00. The victim, a young women, had said she was taken in a car to this office, and threatened with a firearm. She had supplied several details about the room where the incident reportedly took place, the inspector was told. Once they entered the room, the Detectives took pictures using a Polaroid camera. The witness then gave them copies of the different schedules on that day. They then went into the yard, to take pictures of patrol car no. 100, driven by G.T. on the night in question. They told the witness that the officer had apparently been wearing a uniform and driven, a CN Police patrol car. He had reportedly made a deal to obtain oral sex, before driving the woman to the station. Along the way, she had reportedly struck her head and legs in the car, and was then sufficiently nervous that she wished to leave the car. After they arrived at the building, the police officer reportedly asked her to take her clothes off and took pictures of her. He then asked her, she said, to perform fellatio on him. Before leaving, she had apparently made a burn on the underside of a desk with her cigarette, to help identify her aggressor. At 12:15, after the two Detectives had left , Inspector Cornford reached Superintendent Saunders by telephone, and the Assistant Chief, for a conference call. Once they had heard his explanation, they asked him to leave it up to the Vancouver police officers to pursue the investigation by obtaining the complainantís version. On July 9, Inspector Cornford sent the following report to Superintendent Saunders, after which he left it up to his superior to pursue the investigation. with the assistance of two lieutenants:

Members of Vancouver Major Crime Section came to my office at 1150 Station Street, Vancouver, at which time they informed me that they were investigating a member of the CN POLICE with regards to Charges of Sexual Assault.

Information relayed to me was as follows: on the 28th May, 1990 in the City of Vancouver, at approximately 0400 to 0500 hrs, it is alleged that CN POLICE CONSTABLE G.T., did in a marked patrol car (100) at Broadway and St. G. Street, stopped and spoke to a prostitute and made a deal for oral sex at a cost of $40.00, (Forty dollars), he then picked up the female and drove down Main Street with her to the CN Station.

The female stated that en route he had a bottle of liquor under the seat and that he took a few drinks from the bottle. He asked her if she wanted a drink, and she declined, noticing that he smelled of alcohol.

On arrival at the Station he drove over the median in front knocking her head on the window and banging her legs on the computer in the middle area of the front seat of the car, when she complained G.T., who commented " Who the fuck cares about you anyway?í His comments according to the female caused her to be concerned, and she asked to be driven back. He was at this time stated to have drawn his service revolver and taken her into the police office on the Main floor (She provided an accurate description of the office in detail even the location of the equipment).

In the office she was told to strip and to perform FELLATIO (Oral Sex). He is reported by the female to have held his revolver in his hand while she performed the act and when concluded he would have told her he wanted to take a picture of her in the nude, she requested an additional $40.00. He would then have taken a picture of her.

G.T. informed Vancouver Detectives he paid the WOMAN $90.00 and she had no change. (S40.00 oral sex. $40.00 picture) She says he did not pay her. He then told her to get dressed and took her back to the patrol car and drove her back to a block in the area of 6th and St. G. Street, Vancouver, where he was seen by Vancouver Police. (They were ticketing a car) Time on ticket was issued at 04:50 hrs. on 28th of May, 1990. (Substantiating time and date) Ö

I asked Detective if she could describe the constable. She would have informed them that the person was a white male approximately 50 years old, grey hair, large pot belly, falling over belt, in uniform with short sleeves. She informed the detectives no other persons were involved. However, she stated two weeks before this incident, a marked car had stopped and asked prices and said he would come back later. She could not remember time or date.

The two detectives told me that when questioned by them, Constable G.T. denied drinking liquor, he stated he did not drink or point his revolver. He admits to the act in taking the female to the Police Office, transporting her in police car #100, and having oral sex. He also admitted taking a picture in the office and he said he destroyed the photo (Police Polaroid Camera in office).

The female (name unknown) is well known to Vancouver City Police as a Prostitute, white, 31 yrs. of age, living in the area of Broadway. She says she was not paid, but was forced to perform. Therefore the reason for the City Police investigation. This concludes my investigation with the detectives who informed me that they are awaiting the outcome of Polygraph test that is to be taken by Constable G.T. at 08:30 hrs Thursday 12th July 1990.

On Monday 9th of July a letter from Superintendent R.L. Saunders was delivered to Constable G.T. by me at his residence advising him of the time and date of the hearing. He accepted same at this time

When he was cross-examined. Inspector Cornford said that the Detectives told him, when he met with them, that they would question the suspect. They later confirmed the results of their investigation to him, and told him that charges would be brought following the suspectís refusal to take a polygragh test. But the witness never knew the results of the charges laid. He did not ask Constable G.T. about the incident himself, and was not involved in the decision to dismiss him. The incident took place on Sunday night/Monday morning. This work shift is the quietest because the rapid trains do not leave the Vancouver marshalling yard.

Lieutenant Pallick was the next witness. He had been a lieutenant in Vancouver at the time where he was responsible for employee investigations and supervision. He had met G.T. in 1983, when the latter arrived in Vancouver. On June 29, Lieutenant Pallick became involved in the case when Superintendent Saunders asked him to take a colleague and go to the complainantís locker and there to seize his firearm, his ammunition and his police badge, and to look for a picture of a nude woman. They did so, taking the service revolver and ammunition, but without finding the badge, and discovered a photograph of a bare-breasted adolescent woman. They then put on a new padlock. On June 30, the witness called the Vancouver Police Department, to ask the Detectives to obtain a search warrant. The Detectives later told him that the photo discovered in the locker was not of the victim, and he so informed the Superintendent. On July 4, along with his colleague, Lieutenant Held, he went to the complainantís home to deliver the letter of suspension. The complainant told them at that time that he was expecting it, and told them what had happened. He was very nervous and added that he had not told his wife, and did not know how he could break the news to her. On July 6, the witness and his colleague sent the following report to Inspector Cornford:

On Friday,, the 29th of June 1990. Lieutenant Pollick and I were instructed to attend the Thornton Yard Police office Locker room to enter Constable G.T.ís locker. Superintendent Saunders had instructed us to seize his revolver and police badges. We were also instructed to be on the lookout for Polaroid photos of a sexual nature.

At 17:15 hours, Lieutenant Rollick and I removed the padlock from G.T.ís locker and recovered his revolver and ammunition. His police badges were not found. However, in the search a Polaroid photo was discovered in a cookie tin. The photo was of a white female about 17 years old, standing with her blouse held open to expose her bare breasts. After the revolver was seized, the locker was secured with another padlock. Mr. Saunders was advised of our findings at 22:10 hours.

On Saturday, the 30th of June 1990, Lieutenant Pallick was called by Mr. Saunders at 08:00 hours, and he was instructed to notify Vancouver City Police Detectives that we saw a Polaroid photo of a female in the locker. Detective McKeddie was reached at 09:50 hours and when he was told about the photo indicated they would take steps to obtain a Warrant to search G.T.ís locker.

At 12. 10 hours. Detectives McKeddie and Kilpatrick attended the Thornton Yard Police office locker room with a WARRANT TO SEARCH G.T.ís locker. The locker was opened and upon conducting a search of the contents, the Polaroid photos was located and seized. At 12:30 hours the search was concluded. At 12:40 hours , Mr. Saunders was notified of what had taken place.

Meanwhile, G.T. was on days off and out of town. He had left on a trip on Friday the 29th and was not due back home until late Tuesday the 3rd of July.

On Wednesday, the 4th of July, 1990, we learned that G.T. had arrived back home about 22:00 hours last night. Lieutenant Pallick and I were instructed to attend the G.T. residence to deliver a letter informing him that he is suspended from service and to seize his Police badges and Identification.

We arrived at the G.T. residence at 09:00 hours and G.T. answered the door right away. He was at home alone. He invited us inside and once we were inside I handed him the letter along with the explanation that we were instructed to deliver it to him. G.T. commented, "I was expecting this, I guess they want to get rid of me". Upon reading his letter, he put it down and began telling us what happened. We informed him that we were in the dark on the matter. He then offered to let us read the letter.

After we read the letter, he began to go into what had happened. He told us he had taken a prostitute into the Vancouver Depot Police Office while on duty and had sex with her. He described the act as a "blowjob". He told us about the Prostituteís allegations and strongly denied ever pulling his revolver out of its holster at ant time. He also denied drinking while on duty. He said he has been worried about his involvement with the Prostitute ever since it happened. He felt something wrong in the way she acted and feared she may report him to the CN Police office.

Meanwhile, G.T. told us he intends to submit to a Polygraph test and this is planned for Thursday the 12th of July at 08:30 hours.

We departed the G.T. residence at 09.30 hours.

Under cross-examination, Lieutenant Pallick explained that he had been instructed on July 4 to deliver the letter of suspension to the complainant and to recover his badge. G.T. was very cooperative, gave them the badge and voluntarily handed over his Police keys.

Detective Prenzl, who was in charge of investigating sexual crimes with the Major Crime Section of the Vancouver Police, was then heard. On June 10, he was informed that an unknown police officer had sexually assaulted a woman. The woman stated that the police officer had approached her in the Vancouver red-light district, while he was driving a patrol car with the department name on it. She said that he had driven her in the car to the CN offices, after agreeing with her on a price of $40.00. According to her, the car had struck a concrete median strip on the way. The witness was placed in charge of the investigation. He met the complainant on June 29, at 06:30, in the CN Police offices in New Westminster, accompanied by Detective Kilpatrick. They accompanied the complainant to the parking lot, where they advised him that they were investigating a sexual assault case, and wished to question him in that connection. They read him his rights and the complainant confirmed that he understood. They repeated the young womanís version, and told him that they had solid evidence. but reminded him that he did not have to say anything. He then agreed to give his version of the facts, which the witness took down verbatim:

Statement G.T. of 22-15 Kdek Court, New Westminster, B. C. Taken at CN Police St. Parking lot, Surrey 90160129 06:36 hrs.

Began by demanding to know details.

Det. Kilpatrick provided with rights: G.T. indicated he was familiar with rights and understood, said preferred to make statement here.

A: I picked her up and I had sex with her but as for as assaulting, I did not, everything was willing. It was her residence that I drove her back to, her residence I think, when we were through.

872 Q: You said you had sex with her. Do you want to tell us what happened.

A: I picked her up. I talked to her before taking her back for sex. I took a picture of her back in the office which Iíve since destroyed. She performed oral sex on me then she got dressed. I got dressed then I drove her back to her place. I presume it was her place.

872 Q: Was it a straight transaction?

A: She wanted cash for the picture and cash for the sex and I didnít quibble about that but I had a funny feeling about her.

556 Q: What did you pay her?

A: I think all together about 80 bucks, 90 bucks, I forget now.

556 Q: Have you done this before?

A: Iíve paid for sex before yes.

556 Q: But did it take place at the CN police station before?

A: No that was the first, maybe thatís why I had the funny feeling. If youíd have come last week I could have given you the picture but I cut it up.

556 Q: How did you part company? Was it a pleasant parting or what?

A: Yes as far as I knew there was no animosity. Certainly not on my part and I didnít think on her part. There were people around when we left. Iím trying to remember if there were people on the concourse when we left but I donít think there was.

556 Q: Had you ever seen this girl before?

A: Iíd seen her on the streets before. yes.

Q: Ever have any dealings with her before this?

A: No.

556 Q: Have you had any contact with her since then?

A: No I havenít seen her since then. How long have you had this information ?

872 Q: About 10 days.

A: What am I supposed to have done to her?

Q: Weíll get to that in a second. As far as you know this was a one time deal with her and you parted company on friendly terms.

A: Right.

556 Q: Did at any time that you were with her did you have your gun out of its holster?

A: No, no that is something I would never do. Even if she asked me to show it to her I wouldnít have done that.

556 Q: Did you ever tell her you should blow her fucking head off?

A: No.

556 Q: Was there any violence associated with this sex?

A: No none whatsoever.

556 Q. How were you dressed?

A: I was in uniform and I had my pants undone my belt undone and my pants were dropped a little bit from my hips. I was seated on the edge of the desk standing up, she was kneeling down.

556 Q: What was she wearing at the time of the sex act?

A: She wasnít wearing anything.

556 Q: What was your conversation with her on the drive down about?

A: I was talking to her about sex.

Q: What about family?

A: My wife was mentioned.

Q: What about her family ?

A: Her family? No.

Q: Can you think of any reason why she would suggest?

A: After it was over after I drove her back to where she lived. I have the feeling sheíd go back to my dept. and say I had sex with her in the station thatís the first time Iíve done something like that

Q: What gave you that feeling?

A: I donít know partly I was disappointed in the package she was dressed, very attractive and sexy with her clothes on, but when she took them off she didnít look the same. With clothes her boobs looked big and firm but with them off they were small and flat and she had bit of a pot and I believe she had a scar from a caesarian or something. I didnít feel right about it. I thought sheíd go to the Dept., say we had sex in the station, I didnít think sheíd go to the city police and say Iíd assaulted her. I was nervous about it I said I was nervous about the sex bit.

Q: Did you insult her about her body?

A: No

556 Q: Did she threaten to go to your Dept?

A: No

556 Q: It was just a feeling you had?

A: It was a feeling I had.

872 Q: How much were you drinking that night?

A: Nothing, coffee thatís all. I donít drink on the job and Iím not in the habit of drinking before I come to work.

When I first started going out with my present wife we worked 8 hour shifts, we went out for supper and had wine. About 2 hours later I went to work. The Constable I relieved said I had liquor on breath and I was questioned about it so now if I go out I donít have anything to drink.

872 Q: Ö (The arbitrator has omitted certain highly intimate passages of no great relevance.)

876 Q: She was on Broadway when you first picked her up was she?

A: yup.

876 Q: Thatís some way from the yards. Did you go up purposely to find a girl?

A: No but when I seen her I thought that was nice it would be nice if something like that would give me a blowjob. But when she took her clothes off that was something different.

It was $90 I gave her, S40 for the picture and $40 for the blow job but I gave her $90 and she said she wouldnít give me the ten.

556 Q: I donít understand why sheíd say you pulled your revolver and threatened her.

A: Neither can I. That would be the last thing Iíd do and I didnít. I was disappointed with her looks afterwards. I didnít want to have her mad at me or something like that. I think I must have thought sheíd go to the Dept. with it. In the station Iíve never done it before and wouldnít again. Did she give any reason why she waited so long to report it?

556 Q: No, did You smoke in the office there?

A: Yes we did. I think I smoked one of her cigarettes because I left mine in the car, thatís another thing, weíre not supposed to smoke in the buildings.

556 Q: (described Victimís version suggested has drinking problem, time to admit was now.)

A: She did hit her knee or shin, I remember it was "scraped".

556 Q: Did you ejaculate?

A: Yes I came, I had a condom, it took a while but I did get hard and came. I didnít take my gun our, I wouldnít do that, I know that can be considered a threat. I donít usually pick up hookers. I donít know when the last time was, Iíd say over a year ago. I was nervous about being in uniform and doing it in the station. I think I told her that, itís not something Iím in the habit of doing either.

During the questioning G.T. appeared totally calm. He did not display any sign of anger or disgust at any time. Rather, he appeared resigned. In early July, before submitting their report to the Crown, the witness and his colleague offered the complainant the opportunity to take a polygraph test. The complainantís counsel later intervened, after which the complainant refused. The witness sent his report to the Crown prosecutor on July 11, and suggested that a charge of sexual assault be laid. Two days before questioning the complainant, the witness had inquired at CN headquarters and had learned that the complainant was on duty in the night in question. He had also visited the office in question, to see whether it corresponded to the description given by the young woman, and had photographed the patrol car. Everything matched the womanís version of the facts. On June 30, armed with a search warrant, he and his colleague discovered a picture of a young woman exposing her breasts, in the complainantís locker. The case continued and on March 14, 1991, the witness appeared in Vancouver Provincial Court to testify at the trial that had been set for that date. All the witnesses, including the young woman, were present. The Crown Prosecutor questioned the woman and, following discussions with the two Detectives, decided to withdraw the charge. The witness said he did not agree, but it made no difference. The Prosecutor informed the court of his decision, as shown in the following transcript:

MR. BURNS: Your Honour, T.E. Burns appearing on behalf of the provincial Crown. Calling an addition to Your Honourís list, the matter of G.T. which is Information number 25415D.

On that Information, I am directing the Clerk, of the Court to enter a stay of proceedings. I want to briefly explain some of the reasons for that.

MR. MURDOCH: Perhaps I should just indicate, for the record, your honour, Wayne Murdoch appearing for the Defence, and my client is, of course, present with me.

THE COURT: Thank you.

MR. MURDOCH: My learned friend advised me of this a short moment ago.

MR. BURNS: This is an extremely serious allegation in relation to the matter at bar, being an allegation of a sexual assault on a prostitute by a police officer in the course of his duties.

Until five minutes to ten this morning, the position of the Complainant of the matter was that she received no monies for these actions whatsoever, and that they were the result of threats and the use of a firearm.

At five to ten this morning, she advised me that, in fact, she did receive money at the end. She is taking the position that there, were in fact, threats and that the actions were performed as a result of threats.

However, there are now a series of inconsistent statements in relation to finances and discussions concerning sex for money, which make it a case which, in my opinion, would be very dangerous for a court to convict on and inappropriate for the Crown to tender evidence on and, consequently, I am directing a stay of proceedings on the matter.

I appreciate that that leaves this Court with nothing on its court list. I would appreciate some time to speak to various individuals involved with this case, and would appreciate it if we didnít have anything moved in immediately, or maybe I can make arrangements for an alternate prosecutor.

THE COURT: Thatís fine. Iíll just ask our clerk to canvas with the trial coordinator, and to keep your request in mind. If you can let me know.

MR. BURNS: thank, you, Your Honour.

MR. MURDOCH: Thank you, Your Honour.

THE COURT: Okay. Thatís all there is. Thank you.

Under cross-examination, Detective Prenzl recalled that in July, before the case was sent to the Crown Prosecutor, G.T. had initially agreed to submit to a polygraph test, but that his counsel had convinced him some days later to refuse the test. Detective Prenzl obtained a search warrant to try to find the photograph of the victim in the complainantís locker. The photo of the adolescent girl they found was not the one they were looking for.

In response to the evidence, G.T. was the only witness called by the Association. He was hired by the Department on August 23, 1965, and had always worked as Constable, until his dismissal. He was initially assigned to Armstrong for two years, then to Toronto until 1976, when he was transferred to Vancouver, at his request, for two years. He returned to Toronto in 1978, was transferred to Edmonton for one or two months, then to Kamloops in 1979, and finally came back to Vancouver in 1982. He remained there until his dismissal in July 1990. At the time, he was the constable with the most seniority. His duties were as Inspector Cornford described them. He was in charge of the security of CN buildings, vehicles, rail cars and containers, checked the seals affixed to the: doors of rail cars, particularly those containing such valuable merchandise as alcohol, tobacco, banknotes and explosives, patrolled the marshalling yards, inspected CN bridges, checked that everything was normal twice each shift and, finally, oversaw the rapid trains. A constable works four 12-hour shifts and is off for the other four shifts. He is assigned in rotation to two day shifts from 07:00 to 19:00, followed by two night shifts from 19:00 to 07:00. The rapid trains do not run on Sunday night, so that is a quiet night.

G.T. described the incident on May 28. That night, after patrolling outside the main marshalling yard. he returned to Vancouver, to check the main rail line, taking different tracks. Once he had finished there, he headed toward Broadway Street, some blocks away from the main yard, to see what was happening. He did not necessarily intend to approach a woman. From there he would continue to the marshalling yard. It was about 05:00. While driving by, he noticed a young, woman on Broadway street, whom he assumed to be a prostitute, because she was alone and because of her dress and the time. She looked attractive to him, and he stopped the car in front of her to ask whether she was a professional. She replied by giving him her prices: S40.00 for fellatio and $60.00 for complete sex. The complainant asked how much she would charge to pose nude, and she said S40.00. He agreed, took her into the car and headed for the station. On the way, he explained that he was taking her to an office where there was a camera. The trip took less than five minutes. The complainant was nervous however, because of having the woman in the patrol car, which was against regulations. When he arrived at the station, he struck the median concrete block between city property and CN property. The young woman was thrown forward, and her leg struck the radio bracket. Up to that point, the complainant had been explaining his very personal reasons for wanting to take her picture. (The Arbitrator does not consider it necessary to go into all these details.) In the past he had obtained the services of a few streetwalkers, and had paid for fellatio more than once. This time, however, he did not to intend to have sexual relations with the young woman, other than taking her picture. When they arrived in the station, he offered her a plastic bandage for the scratch on her leg that she had sustained in the car, but she refused. In the police office, she demanded the sum they had agreed on. He gave her two S20.00 bills, and she undressed. Once he saw her nude however, he was disappointed because her body was not as physically attractive as he had thought when he saw her in the street. For the photograph, he asked her to hold one breast in her hand and to cup the other around her vagina. He took the picture with a Polaroid camera and, while they were waiting the 30 seconds for it to develop, they lit a cigarette. Finally, he asked her to perform oral sex on him. She agreed, but demanded payment. He gave her a S50.00, his last, but she refused to give him change. Everything happened with no threat of violence on his part. Nevertheless, he felt nervous because he was in uniform, in the Department office in the company of this woman. She provided a condom, put it on, and performed the service. Once she had finished, they both dressed. When leaving the office, he looked around to make sure that no one was coming in, and then they left the station, shortly after 05:00, to go to his car. He took her back to her neighbourhood near Broadway Street. Between the time he had approached her and the time he brought her back, about 30 minutes had elapsed. On the way back, she did not complain in any way, and he thought they parted on good terms. But G.T. was nervous, possibly because he suspected what might happen. This was the first time that he had tried anything like this, while he was in uniform, and he was afraid that he might have laid himself open to some form of blackmail. If she reported the incident to the Department, there would be Hell to pay. He did not take the photo home, preferring to leave it at the office with his personal effects. He kept it for three or four weeks, and then cut it in pieces and threw it out.

One week later, Detectives Prenzl and Kilpatrick came to see him at CN Police headquarters at 06:30. He had just come off duty and was about to go home. He and his wife had planned to get out of the city for a few days, with their trailer. In response to the questions by the two Detectives, he admitted taking the picture and having oral sex, but denied making threats or using his firearm. He gave them his statement in the car, rather than at the Police station, so that he could return home as quickly as possible. One week after making his statement, he received the letter informing him of his suspension. Between July 4 and 12, Department management called a meeting of all constables in Vancouver to discuss how eligible officers could buy back their years of service. i.e. those who were already 50 years old and had 35 years of service. The reorganization plans were also to be discussed. The complainant wanted to attend, but his superior, Inspector Cornford, called him the night before to tell him that Superintendent Saunders would prefer that he did not appear. G.T. then called Saunders to find out more. His superior confirmed that he would prefer G.T. not to come to the meeting, explaining that he could be embarrassed. The complainant protested that only two constables were aware of his suspension, but the Superintendent continued to insist on the grounds that it would be embarrassing. Finally, G.T. decided not to attend the meeting, although he was hurt by his superiorsí attitude.

At the disciplinary hearing on July 12, G.T. attempted to have Constable Wizen as his representative, but his superiors replied that they would prefer a local representative. He received a copy of the documents entered as evidence, including the two reports, at 10:00, immediately after the hearing commenced. He did not protest, and spent ten minutes studying them. At the end, he did not wish to make any comments, and simply added "You may say it was fair." He also said that he regretted his actions. He had been disciplined in the past, and had always cooperated by admitting to the charges. He had never lied or denied any valid criticism.

Following the disciplinary hearing, the complainant went to the EAP to discuss his health problems. There he was told that they were not covered. He later underwent medical tests and surgery, in November 1990, to remove a cancer. He was declared fit to return to duty on June 1, 1991, and began looking for work. He had another operation on his ear, in September 1991. Finally, he noted that he had turned 56 on May 24, 1992. As for the polygraph test, the complainant said that he had initially agreed to the test, in his discussion with the Detectives and had even made an appointment for the purpose on July 12. However, when he talked it over with his wife and a friend, both advised him to hire a lawyer. He did so, and the lawyer advised him not to submit to the test, as the results were not reliable. He later explained to the Police officers that he would have accepted but for his lawyerís advice. As for his wife, he explained that he had suffered terribly on the weekend after making his statement, but that he had not said a word to her about the trouble he was in. After receiving the notice of suspension, however, he confessed to his wife and gave her all the details. His wife, who had married him as her third husband in 1987, replied that she had wed him for better and for worse, and that after his confession, the worst was behind him.

G.T. was then cross-examined. On Sunday night/Monday, morning, no rapid trains run in the station, but there are some local trains. The marshalling yard is locked from Friday night to Monday morning. It is lighted in some parts and not in others, meaning that there are sometimes loaded rail cars in the darkest corners of the yard. One of his duties was to ensure that there were no intruders in the yard. The complainant then returned to the incident of May 28. Broadway Street is in the Mount Pleasant neighbourhood. The young woman he accosted that night was wearing a short dress, pantyhose and a bra. He did not remember her shoes, and did not pay much attention to her hair. After seeing her on the street for the first time, he circled the block, since she was not right at the comer. He came back, looked her over again, and decided to approach her. He was fully aware that taking such a person into the patrol car was against regulations, as were his subsequent actions. However, he did not initially intend to have sexual relations with her. She sat on the front seat. Once they reached the office, he photographed her with the departmentís camera. He was in the habit of taking Broadway Street, less than a mile from the CN offices, during his patrol. He drove at normal speed, and arrived in under five minutes. As they arrived, the car struck a concrete median strip, and his companion banged her leg. He never denied this accident during the disciplinary hearing, for he was never questioned about it. All he denied was having threatened her by pointing his firearm at her, and having consumed liquor. He also did not discuss his personal problems, since no one mentioned them, and he did not consider it appropriate to volunteer very intimate details. He was perfectly aware that soliciting, the services of a streetwalker was a criminal offence. His wife was unaware of this behaviour. If he had been satisfied with the photograph of the woman, he would not have asked for anything more. In fact, if he had not wished to take her picture, he would not have taken her to the office. When she began fellating him, he undid his belt and dropped his pants slightly, but his weapon remained in its holster. He had his hands on his hips, above his holster, sitting on the edge of a desk with his pants open at the waist. He was nervous, in part because his wife would throw him out if she knew. Finally, some time before, he had seen the picture of the adolescent girl, by chance, on a desk in the Police office, and had placed it in his locker so that none of the female constables would see it.

Counsel for the Association produced the special agreement between CN and the Association, dated July 29, 1990, entitled "Conditions an d benefits to apply to employees adversely affected by operational and organizational changes under a proposed CN Police (1990-1992 ) Reorganization Plan." CN counsel objected, and the Arbitrator took the matter under advisement. It was then admitted that these facts were subsequent to the dismissal. Furthermore, even if G.T. had not been dismissed, there is no way of knowing whether he would have accepted the offer, considering he might not have been adversely affected.

At this final point in the hearing, CN counsel pointed out that this agreement was not binding on the Arbitrator should he order that the complainant be rehired and that in any case the Arbitrator did not have jurisdiction in this matter.

ARGUMENTS BY THE PARTIES

Counsel for the employer submitted that G.T., just prior to his hiring in 1965, was already very familiar with the rights and duties of a police officer, to judge by his answers in the questionnaire. He then took an oath, clearly worded as to the duties of a constable. Once he had been hired, he was governed by the provisions of the CN Police Instructional Manual and other regulations in effect in the Department. CN Police officers are different from ordinary citizens by virtue of several attributes, including the carrying of a firearm, ammunition and handcuffs. They can deprive a citizen of his freedom by exercising their power of arrest, with or without a warrant. They use a patrol car and must cooperate with other police forces. The nature of their duties means that they have a great deal of independence, and so management must have very high confidence in them, since they work unsupervised. During the night shift, constables work alone and are responsible for overseeing the employerís property, trains and customersí goods, for checking, public level crossings and automatic protection systems and, finally, for keeping out intruders.

On the night of May 27/28, G.T. was the sole police officer in charge in the Vancouver district, and was to carry out all his duties unsupervised. Instead, he neglected his duties, to perform the actions of which he is accused. On June 27 a Vancouver Police officer informed Inspector Cornford that a sexual assault by a CN Police officer, between 04:00 and 05:00 on May 27, 1990, was being investigated. As it turned out, the complainant was the officer in question. Management paid no heed to the victimís charges that he had had liquor in his possession and that he had threatened her with a firearm. But management did have to consider the fact that the complainant reportedly paid $40.00 and $50.00 for the photo and the oral sex, that these activities reportedly took place on CN premises during office hours, that Vancouver Police officers had come to investigate on the premises and that they had taken pictures and questioned several people. Detective {sic} Pallick and his colleague were then asked to seize the complainantís badge, his weapon and his ammunition from his locker. On June 29, the two lieutenants did so, and also discovered a picture of a teenage girl exposing her breasts. The Vancouver Police Detectives obtained a search warrant to seize the photo. Several days later, Mr. Pallick went to the complainantís home to deliver a letter informing him of his suspension. The complainant admitted at that time that he had paid for and received sexual favours from a prostitute and had taken her picture. Superintendent Saunders presided over a disciplinary hearing on July 12, and sent a report to his superiors. He invoked the severance of the relation of confidence and concluded that dismissal was warranted. He felt that there was no other choice. The complainant was a senior Constable who should act as a model for more junior officers, but he had found nothing better to do than seriously embarrass the department. Superintendent Saunders had considered the photo discovered in the locker, the complainantís invitation to the young woman to ride in the patrol car, his criminal offence, the harm done to the image of authority he had to project, his dereliction of duty and, finally, the harm done to the departmentís image. These acts, in themselves, were sufficiently serious to justify dismissal.

The complainant had also committed five different infractions under the disciplinary code in addition to the criminal offence. It is true that G.T.ís file contained some mitigating circumstances, i.e. 25 years of service and a disciplinary file that had been clean for at least five years. Nevertheless. while he had immediately admitted his wrongdoing, it was because he was confronted with the evidence, and he showed no remorse when he made his confession to Detective Prenzl. Several days later, at the disciplinary hearing on July 12, he showed remorse, but was unable to justify his actions in any way. Rather, there were a large number of exacerbating factors, including the complainantís status as a peace officer and a symbol of security, the nature of the action in his office while he should have been on duty, the commission of a criminal offence, the embarrassment he had caused his colleagues and superiors, the fact that he had previously resorted to the services of prostitutes. The absence of any personal explanation provided on July 12, and the presence of the photo of the adolescent girl in his locker. In his defence, the complainantís explanations were difficult to example, he explained that everything was quiet on that night of the last Sunday in May, but also admitted that he had not covered some sections of the railway. Furthermore, his actions must have taken more than 30 minutes, perhaps closer to 90 minutes, during which period he was absent from his post. He did not mention the incident involving the concrete median strip at the disciplinary hearing. As for his medical problems, he had never informed management of them, and consulted therapists only after the dismissal had been imposed.

CN counsel provided the fruits of considerable legal and jurisprudential research to back up his points. A decision by the Supreme Court of Alberta Rex vs OíBrien (1919) CRC P- 282 established that CN Police officers are peace officers of the railway, and hold that authority throughout the country. These peace officers, who have taken an oath under section 425 of the Railways Act, RSC, Ch. R-3, are also governed by a code of ethics. Article 1.1.5 of this code stipulates:

1.1.5 ROLE OF A RAILWAY CONSTABLE AS A PEACE OFFICER AND A RAILWAY CONSTABLE

By virtue of your Oath of Office you have been employed by Canadian National as a Railway Constable for the preservation and maintenance of the peace within your lawful territorial jurisdiction. During your career, you may have the opportunity to accept additional and greater responsibilities, however, the authority and basic responsibilities derived from your Oath of Office will remain constant.

Your appointment as a Railway Constable subjects you to the provisions of the Criminal Code and provides you with the status of a peace officer. This important aspect of your role in CN requires you to be thoroughly aware of your legal authority and responsibilities as defined by the Criminal Code of Canada.

You may frequently receive advice in respect to your actions as a peace officer but unless directed by ranking officers of CN Police or officers of judicial system, you must act independently while using discretion and good judgement.

The status of the peace officer provides CN and our department with a special measure of pride in the policing and protection community. This status has been accorded respect and recognition and we count on you to help us preserve it.

While performing the powers entrusted in you, you will be required to maintain order and protect Company goods and property against theft, loss, sabotage, negligence, wilful damage, pilferage, arson. etc.; to protect freight shipments against theft, pilferage, loss and damage, to safeguard and protect the property of employees and the travelling public.

As a member of CN Police Department, you are a CN employee subject to the directives and benefits of the Company normally administered through departmental channels and supervision. You must comply with the Company policies, rules and regulations, be aware of various working agreements the company has made with its employees, and conduct yourself in a manner as to merit respect and support.

The complainant was dismissed for having violated, with evidence as proof, certain provisions of article 4 of the code of ethics, including paragraph 4.1.3:

4.1.3 DISCIPLINE

When the need for discipline arises, it is System policy that it be correction-oriented and a system of assessing Demerit Marks for violations is used by this Department.

A CN Police Officer is subject to disciplinary action ranging from a Corrective Interview to Dismissal when Management and/or employee efforts fail to produce an acceptable level of performance.

Unacceptable actions include:

Ö

5) Immorality, indecency or lewdness.

7) Falsifying any information or report.

8) Neglect of duty.

9) Absence from duty, post or assignment, without permission.

14) Any act or omission contrary, to good order and discipline.

16) Violation of any rule or order of the Canadian National Railways.

Finally, the complainant violated section 213 of the Criminal Code:

213 (1) (Offence in relation to prostitution)

Any person who in a public place or in any place open to public view

a) stops or attempts to stop any motor vehicle,

b) impedes the free flow of pedestrian or vehicular traffic, or ingress to or egress from premises adjacent to that place, or

c) stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person for the purposes of engaging in prostitution or of obtaining the sexual services of a prostitute is guilty of an offence punishable on summary conviction.

(2) Definition of "public place"

In this section, "public place" includes any place to which the public may have access as of right or by invitation, express or implied, and any motor vehicle located in a public place or in any place open to public view.

Arbitration tribunals apply the code of ethics governing employees. The undersigned applied this rule in an unpublished award dated November 22. 1985, Bell Canada and Communications Workers of Canada, grievance by Serge Arsenault, in which the following comments were made:

But it seems to the tribunal that the complainantís most serious offence was his silence concerning the accident on April 2. He could not be unaware of his obligation to report it. He had been suspended for twelve days, several months previously, for the same offence. The Code of Ethics and the Station installation and Repair Manual specifically mentioned this obligation, and there had been many discussions on this matter between the complainant and his superior, Larouche.

The tribunal can only conclude that the complainant obviously intended to conceal the offence. This is unacceptable behaviour, and must be termed misleading. In short, the tribunal concludes that there is no longer any reason to believe in the existence of the relationship of confidence essential to the maintenance of employment. (unofficial translation)

Case law is unanimous in recognizing that the very nature of the functions assigned to certain employees, police officers in particular, and the high degree of confidence that must then be placed in them, oblige them to maintain impeccable conduct. If the transgression proven conflicts seriously with their duties, the imposition of progressive discipline is not appropriate. and the arbitrator must conclude, rather, that the relationship of confidence has been severed. Among these arbitrators, Me Marc Gravel wrote, in the award MUC and Fraternité 86T-312:

The question to be asked is whether the accusation made in exhibit F-3 has been proven by preponderant evidence and whether, once this has been shown to the satisfaction of the arbitration tribunal, the sanction imposed is overly severe, in view of all the circumstances in the case.

The undersigned would have preferred to conclude that the complainant was unjustly accused under article 10 of the Code of Ethics, and that his career was not finished.

However, it is impossible for him to so conclude, for not only is there evidence that the complainant hid the cheese, but that he later tried to evade his responsibilities in that respect.

Although extensive evidence has been produced to show that Mr. Brousseau is a reliable and trustworthy person, the event albeit isolated, merited an exemplary sanction by his employers, for which we have found no mitigating circumstances.

A police officer is by definition and duty responsible for preventing and controlling crime, and for seeking criminals. Like Caesarís wife, he must be above suspicion: he must provide an example for those around him and, unfortunately, Mr. Brousseau has failed to do so.

(unofficial translation)

When the offence was a moral one, arbitrators have upheld the dismissal, invoking the police officerís failure in his duty to maintain model behaviour, resulting in the severance of the relationship of confidence. In a decision rendered by the Ontario Civil Commission on police services on May 23, 1991, Constables Trumbley and Pugh and Metropolitan Toronto Police Force, Chairman Mr. W.D. Drinkwater dismissed the appeal of two police officers contesting the validity of their dismissal. While investigating a case involving a woman, they had had sexual relations with her in their patrol car. To justify the penalty, the Police Department had claimed that the officersí action tarnished the reputation of police forces. Despite the officersí clean disciplinary records, the Commission decided:

With respect to the appropriateness of the penalty imposed on both officers, we note the trust imposed in police officers by the public and the expectation that people in distress can turn to police officers for help and assistance. A police officer holds a position of public trust and must be held to a high standard in the execution of such office. People in distress must be able to turn to the police with confidence. They must be able to trust that police officers will not take advantage of their distress. We find the conduct of the two officers awful. Their conduct on the night in question, standing alone, justifies dismissal.

CN counsel then stressed the importance of CNís image and that of its Police Department, which the complainant tarnished through his behaviour on May 28. He quoted comments by arbitrator Rene Lippe, in the award Bell Canada and Communications and Electrical Workers of Canada 9T-299. In this award, the arbitrator declined the grievance of a Bell Canada employee working as a repairman-installer because he had fondled a woman subscriber while she was sunbathing, in a bathing suit at her home. Arbitrator Lippe emphasized:

In the case at hand, the complainantís actions, as well as being unacceptable, took place during working hours, on the person of a female subscriber of the Company and while the complainant was representing the Company, travelling in an easily identifiable van belonging to the Company. The dismissal is justifiable on these grounds alone, since this action is such that it undermines the employerís confidence in the employee. (unofficial translation)

CN counsel argued that, in a case such as the one under discussion, the employeeís seniority and his clean disciplinary record cannot be considered mitigating factors when his actions have made it impossible to have confidence in him. Indeed, misconduct such as that by G.T. caused the irremediable severance of his relationship with his employer. CN counsel quoted arbitrator Harvey Frumkin, in an unpublished award dated September 12, 1983, Canadian Pacific and Canadian Pacific Police Association:

This Tribunal as well as any tribunal should always weigh carefully the matter of justification for discharge of a long-standing employee. Discharge should be reserved for very serious cases where the conduct of a grievor or circumstances surrounding such conduct are such that a continuation of an employer-employee relationship is no longer tenable. Having considered the circumstances of the present case, however, the Tribunal must conclude that both these tests are met. The Tribunal cannot ignore the wanton irresponsibility of a police officer in leaving his post for periods of as much as two (2) hours when that police officer was entrusted to survey and protect a railway yard which had been the subject of extensive theft and vandalism in the past, and which contained property of very substantial value. The occurrence was not an isolated one and the Company may well have been justified in believing that such occurrences had taken place with regularity prior to inception of surveillance measures. The Grievor by what he had done had severely compromised the trust that his employer had placed in him and it is difficult for the Tribunal to take issue with the conclusion at which the employer had arrived, namely, that it could no longer trust the Grievor in his duties.

The tribunal has reviewed various decisions submitted by Union counsel in which mitigating factors were recognized to justify tribunals of arbitration in substituting for discharge some disciplinary penalty less severe. The circumstances of each of these cases submitted, however, bear little resemblance to the facts confronting the Tribunal in this case. Most important is that in none of these cases was the level of responsibility as high as it was in the present case. The incidents reproached in the cases to which Union counsel referred were isolated and did not reveal a pattern of misconduct as appears in the present case. In some of the cases, serious mitigating factors existed. In short, the Tribunal can see no basis for application of any of these decisions to the present case.

In response, Union counsel submitted that the arbitrator in this case had to answer only one question, i.e. whether the employer was correct in claiming that a constable in its service who engaged in oral sex with a prostitute, on the work premises while he was on duty, had thereby committed such a serious act that his dismissal was fair and equitable, regardless of all the other circumstances. Superintendent Saunders and the senior management of the Department felt this to be the case. In their opinion, G.T.ís misconduct was so serious, in view of his duties as a constable, that dismissal was the only possible solution, regardless of his seniority, his clean disciplinary file and other disciplinary options. According to Superintendent Saunders, this action had irremediably severed the relation of confidence. CN counsel heavily stressed the fact that there had been an investigation by the Vancouver Police force into a member of the CN Police, the complainant, who had committed a criminal offence. But in doing so, CN counsel was confusing the issue. Why bring up the investigation by the Vancouver Police and the criminal offence, when throughout the investigation, it was continually emphasized that these factors were not taken into consideration? On this subject, all that the arbitrator has to consider is the fact that the investigation took place as a result of a false accusation by a prostitute, which even the Crown Prosecutor did not believe. It becomes clear that Detective Prenzl testified to confuse the issue, since the Department dismissed the complainant only because of the actions to which he confessed, and for no other reason. Finally, it was unfortunate that Vancouver Police detectives became embroiled in the case solely because of the fabrication by the prostitute.

According to Superintendent Saunders. the facts that the complainant picked up a prostitute, photographed her and had sexual relations with her were unacceptable under his personal code of conduct. However, this was a false premise, since he considered only the standards of a CN Police officer, which in his opinion should be higher than those of a municipal constable. Nevertheless, the role of a CN constable is much more limited than that of a police officer in a public force. His duties are restricted, in fact, to protecting the companyís property and preventing crime there. He is instructed to patrol marshalling yards, to inspect railcars and the seals on their doors, and to keep out intruders. The suggestion that a constable vested with these duties must be submitted to higher moral standards than other police officers in the country is absurd, given the limited scope of his duties. A municipal police officer or a member of the QPP or the RCMP, on the other hand, must carry out more delicate and difficult duties, since those forces are responsible for preventing and combatting crime. In fact, the essential role of the CN constable is to protect his employerís property and clientele, but does not extend beyond those duties, a fact reflected in his lower salary. A constable can logically be held to a higher standard of conduct than other employees. Nevertheless, moral issues have no relation to the work he has to do, since he is in no way responsible for preventing or eliminating prostitution. It would be different if CN property were frequented by prostitutes, but that is not the case. Obviously, if G.T. had committed a theft, an offence conflicting with the essence of his duties of protecting property, it would be quite a different matter. But that is not the case. Jurisprudence teaches us that an offence must be contrary to the essential duties of a police officer if it is to irremediably sever the relationship of confidence. That is not the case here, since this is a matter of morals. The complainant displayed very poor judgment in his actions, and neglected his duty for an hour, while engaging in reprehensible conduct during that time. But despite his shocking behaviour with a prostitute on his work premises, the image of the Department was not tarnished to such an extent that dismissal is justified. There must surely have been other disciplinary options. Even if the complainant merited very severe punishment, dismissal was not the only solution. Indeed, as a rule, dismissal is exceptional in the case of a single incident by employees with long seniority.

Accordingly, the employer had the burden of convincing the arbitrator that the fact of engaging in sex with a prostitute so harmed the Department that dismissal was the only solution and that no other possibility, such as early retirement, nor any other form of discipline, could be considered. If the arbitrator is convinced that a CN constable cannot be permitted to make such a mistake, an hour-long sexual indiscretion, then dismissal becomes the only solution and he must decline the grievance. Superintendent Saunders said that he was so shocked that he did not even care how other police forces might proceed in similar circumstances. With regard to the Departmentís image with the Vancouver Police Department, it must remembered that the latterís investigation was founded on false allegations. Furthermore, the arbitrator must consider that section 213 of the Criminal Code does not prohibit prostitution as such. Rather, it prohibits solicitation for the purpose in a public place. In this case, the complainant solicited the young woman in the street, it is true, but only for the purpose of taking her picture. It was not until they were in the office, a private place, that he asked her to fellate him. To do so was not illegal. It was not sufficient for the employer to claim that its image had been tarnished as justification for the dismissal. Rather, it had to establish objective facts, such as, for example, widespread coverage in the newspapers or demoralization of its personnel, which was not the case. Only Superintendent Saunders referred to such a reaction, but he was the sole judge of it. The arbitratorís duty is precisely to evaluate the impact of the complainantís actions. Here, the employer erred by failing to give sufficient weight to the complainantís length of service, his clean disciplinary record, his candour in admitting to his actions, and his spontaneous confessions. In fact, had the complainant not admitted the facts, the employer would have been unable to prove his actions, for the prostitute never testified. Finally, G.T. expressed honest remorse. The employer should have taken these factors into account, but did not do so. In view of all the circumstances, the employer should have considered other options, such as early retirement or a lengthy suspension, which would have served as a perfectly adequate example for other employees that such conduct would not be tolerated. An arbitrator must avoid moralizing, and should not uphold a dismissal for immoral conduct unless such conduct seriously affects the duties of the author. In the case at hand, nothing shows that the complainant would be less effective in his work because he engaged in a sexual act on one occasion. He did not steal from or defraud the Company, or act dishonestly in any way. The jurisprudence produced by CN counsel is not terribly useful. since the arbitrators quoted were ruling in cases where an employee or police officer had been dismissed for fraud or theft.

Union counsel submitted jurisprudence. In an unpublished award dated July 27, 1979, The Canadian Pacific Police Association and Canadian Pacific Limited, arbitrator George W. Adams had to deal with the dismissal of a 60 year old constable with 17 yearsí seniority, who had been found guilty of the theft of a skipping rope. On pages 12 and 13, he wrote:

Ö The decision is by no means an easy one and I have reviewed elsewhere how the lack of specific guidelines allows for disagreements between arbitrators and even the most thoughtful of employers.

The following considerations have caused me to conclude that the grievor is to be reinstated, without additional compensation to that determined, not as a sergeant, and that he is to have the status of a probationary employee for a period of one year in the sense that any reoccurrence of a similar problem will permit the employer to terminate him. I have been influenced and have taken into account the employerís concern for the relationship between a sergeant and trainees and constable. In awarding no additional back pay, I have also taken into account the seniority of the grievorís conduct or circumstances. Undoubtedly, this monetary penalty is far in excess of that imposed upon him by the criminal process. Indeed, that process, did not convict, but rather registered an absolute discharge.

On the other hand, the grievor has served this employer long and well. He is at an age when alternative employment opportunities are few and far between. He was found guilty of a very minor theft on any view of the situation and there con be no suggestion that the grievor is an inveterate and unforgiving thief who is likely to strike again. The grievor had difficulty before me in admitting that he intended to take the skipping rope, but it is clear that he is genuinely apologetic, for the circumstances and I am satisfied that he is not, in fact, a security risk to this employer.

In the award Re Emergency Health Services Commission and Canadian Union of Public Employees, Local 873 35 L.A.C. (3d) 20, arbitrator A.E. Black had to deal with the commission of an offence harmful to the employerís image. The complainant had been dismissed after pleading guilty to a charge of sexual assault. The employer, a public body administered by the British Columbia Ministry of Health, provided ambulance services. The notice of dismissal stated:

The reason for your dismissal is the charge, to which you pled guilty, of Sexual Assault on another person, contrary to Section 24. 1(1) of the Criminal Code of Canada. On July 6, 1987, the sentence of the Court was a suspended sentence and three (3) years probation. Because of the sensitive nature of the services provided to the public by the Emergency, Health Services Commission, your conviction for this offence requires the termination of your employment with the Commission.

After analyzing the evidence, the arbitrator wrote:

In determining whether or not the discharge imposed by this employer was appropriate in all of the circumstances, I must consider whether or not the trust, responsibility and confidence which the employer must maintain the community it serves has been or could be in the future reasonably affected by the conduct of the grievor. Put another way, is there a factual basis for assuming that the grievor, by his misconduct, forfeited public trust and confidence which would impact on the employer to such an extent as to conclude that the employment relationship has been irreparably severed.

Ö

I do not dispute the contention of counsel for the employer that the commissioner must, if it is to carry out its legislative responsibilities, maintain a high level of public credibility, trust and confidence with the community it serves. The employer has sought to discharge T.M. on the basis of a furtherance of its objectives, responding to its perception of the publicís reaction to such offensive conduct. I am not convinced, however, that the employerís perception of the publicís reaction to such behaviour in the circumstances of this case would necessarily require the imposition of such a severe penalty.

Ö

Discharge is usually only appropriate where the employee has demonstrated a clear incompatibility to continue the relationship of employer and employee. Obviously, improper and repugnant behaviour of the grievor in these circumstances cannot be looked at in isolation.

Ö I find absolutely no reason to believe that the poor judgment exhibited by the grievor in the particular circumstances in which it arose would carry over into his professional life. Sound judgment in oneís calling or profession is developed through training, experience and the objectivity which comes with that. One gauge of a personís professional judgment in the future is that personís professional judgment in the past. The evidence supports that the grievor has an exemplary work record over his years of employment. There is no basis on the evidence to indicate that the grievor, either in the past or by reason of this incident, lacks the necessary judgment to properly carry out his professional duties.

Further, there is no basis to conclude that this isolated occurrence would be repeated in the course of the grievorís employment responsibilities Ö Would a reasonable person, having knowledge of the circumstances which gave rise to this misconduct, view the retention of the grievor by the employer in its employ in such a way so as to endanger the high level of trust, credibility and responsibility which the employer is entitled to expect Ö

In another award, Re Indusmin Ltd. and United Cement, Lime and Gypsum Workers , 20 L.A.C. (2d) p. 87, arbitrator Michel Picher presided over a tribunal seized with the dismissal of two employees for having had sexual relations on work premises during working hours. The majority decision of the tribunal was for reinstatement, for the following reasons:

The appropriate measure of discipline can never be determined in a vacuum. Arbitrators have consistently had regard to a number of factors to determine the proper disciplinary sanction once just cause for discipline is established. A first consideration must be the circumstances of the incident. Among the factors to be considered are whether there has been a disruption of the work-place, a disturbance interfering with other employees, a challenge to the authority of the employer, conduct tending to undermine the ability of the employer to conduct its business or an interruption of production. Factors sometimes mitigating against harsh discipline are economic hardship on the grievors and the fitness of the penalty imposed having regard to their past employment record.

Ö The essence of the matter is that they engaged in a sexual act at a time and a place where they should not. As the board has noted above, that in itself is a serious offence against the order of the work-place so as to justify the imposition of discipline.

The records of the grievors has considerable bearing on the boardís conclusion in respect of the appropriate penalty. The grievor, Mr. C., is 55 years old and his chances of finding alternative employment are dim. He was described in evidence as being a good employee of 10 yearsí standing without any disciplinary record whatsoever. Mrs. B has also been a good employee since she began her employment with the company in September of 1974. Her record is likewise without blemish. These factors mitigate against the complete and abrupt termination of the grievorsí employment.

For the foregoing reasons this board finds that discharge is not an appropriate penalty in all of the circumstances of this case.

In an unpublished award dated February 7, 1986, Canadian Pacific Limited and Canadian Pacific Police Association, arbitrator Harvey Frumkin annulled and set aside the dismissal of a Canadian Pacific constable for abandoning his duty, making a false report, transporting other persons to their home without justification, and dangerous driving. He wrote:

As well, the infractions imputed to the Grievor, although serious, cannot be said to be of so grave of a nature as to have been incompatible with his being maintained in service as a police constable. The Tribunal cannot see any fraud or dishonesty per se in what the Grievor did in the sense as has been suggested by the Company. Such suggestion, in the Tribunalís view, would be a distortion of the character of what really occurred. On this point, the Tribunal would make reference to a degree of bad feeling which seems to have pervaded the relationship between the Grievor and certain of his superiors, which may have caused the Company to perceive the Grievorís misconduct in a far more serious light than might otherwise have been the case. The Tribunal would make the observation, in this regard, that the Grievorís misconduct was only discovered during the course of an investigation that was provoked by the fact that the Grievor himself had demanded an investigation of certain statements about him made by Sergeant Weir, which the Grievor considered as unfair and prejudicial to his interests.

The Tribunal, therefore, would conclude that discharge was too severe in the circumstances and, as such, unjustified. As far as the Tribunal is concerned, discharge was an over reaction to what had taken place. The Tribunal can see no reason why a suspension could not have served the purpose of underlining to the Grievor the fact that the performance of duties on New Yearís Eve must be discharged with no less diligence and concern as during every other shift, given the high degree of responsibility of his position and the possible grave consequences of a less than responsible approach to them. In this regard and after considerable thought, the Tribunal has concluded that a suspension of three (3) monthsí duration would have served the purpose.

For the foregoing reasons, the grievance is maintained in part; the discharge of the Grievor on February 26, 1985 is annulled and set aside and ordered stricken from the Grievorís disciplinary record, to be replaced by a disciplinary suspension of three (3|) monthsí duration in response to the following infractions: Ö

Some arbitrators have also examined the issue of the proximity of retirement age as a mitigating factor. In the award Re Boise Cascade Canada Ltd and Canadian Paperworkers Union, Local 306, 20 L.A.C. (4d) p. 355, arbitrator N.V. Dissanayake justified his intervention in a dismissal for sabotage as follows:

The grievor has 36 years of service with the employer, all in the capacity of a papermaker. He has had a discipline-free record in those 36 years. The grievor will be 58 years old on January 31, 1993. Had he continued employment with the employer, at that time he would have been entitled to retire with full pension benefits. His discharge at this time has seriously affected his pension entitlement.

Ö However, in the absence of a specific penalty clause in the collective agreement, there is no reason to not treat an act of sabotage from a corrective discipline approach. As arbitrator Arthurs has pointed out in Re Canadian Broadcasting Corp. supra, the essence of that approach is the future prospects for acceptable behaviour

The grievor has a number of mitigating factors in his favour. The most significant of those are his seniority of 36 years and his discipline-free record in that period of service.

Ö The conclusion is unavoidable in the circumstances that the grievorís act of sabotage on March 12th and his attempted sabotage on March 8th were aberrations in the working life of an otherwise valuable and reliable employee.

Ö

Viewing the grievorís conduct from a corrective discipline approach, I am satisfied that he is not beyond rehabilitation. While he did not immediately come clean when confronted by his supervisor, at a meeting with the employer about one and one-half hours later he confessed to his misconduct and apologized. I found the grievor quite remorseful at the bearing. He openly apologized and pleaded for another chance. In all of the circumstances, I have concluded that he deserves that chance.

I have also considered the serious economic impact that results from the grievorís discharge just one and one-half years from his entitlement to full pension benefits as a significant mitigatory factor. A remedy can be fashioned which will balance the grievorís mitigatory circumstances with the seriousness of the offence and the need for deterrence. I do not accept the employerís position that reinstatement is not appropriate in these circumstances.

Finally, a tribunal presided over by arbitrator G.R. Stewart also considered an employeeís age in the award Re Corporation of the County of Middlesex and Canadian Union of Public Employees, Local 2018, 19 L.A.C. (2d) 123. The employee, 63 years old and entitled to retire at 65, had been dismissed for very serious insubordination. The arbitrator intervened, on these grounds:

Ö Despite the foregoing, it is not without reluctance that the board has agreed unanimously that the penalty of discharge should be substituted with one of suspension without pay or benefits. In making this determination, the board considered the grievorís age (nearly 64). The fact that he has little over a year to go before his retirement and that in todayís labour market it is extremely unlikely that he would ever again find gainful employment. Had the grievor been a younger man and not so close to retirement, the board would have upheld the discharge."

GROUNDS AND DECISION

Given the complainantís confessions, the employer proved each and all of the offences of which he was accused by Superintendent Saunders in the notices of suspension, dated July 3, and of dismissal, dated July 24. G.T., during the night of May 27/28, was guilty of acts of immorality, indecency and lewdness. He falsified a report, neglected his duty, was absent from his post without permission, committed acts contrary to good order and discipline, and violated CN rules and orders. He also acknowledged that he was fully aware of the rules he violated by acting as he did. While he should have been performing his duties as a police officer and continuing his rounds, he elected to commit an offence. He disregarded the fact that he was bringing discredit to the Department by approaching and propositioning a prostitute in the street at 05:00, taking her into his patrol car, driving her to the |office of his detachment and paying for and having sexual relations, as summarized in the evidence. Finally, to conceal this neglect of his duty, he falsified his report.

A CN constable is a peace officer, and this status brings with it the obligation to maintain exemplary conduct. As Judge Roland Tremblay wrote as arbitrator in the unpublished award dated June 17, 1983 La Fraternité des policiers de La Ville de Greenfield Park:

A police officer must be the soul of candour and propriety. The word of a police officer must be unquestionable and consistent with the facts.

A police officer must be the pride of his community and at all times worthy of the confidence placed in him as a guardian of the peace, the person who enforces the law and so guarantees public security.

A police officer must be disciplined to the point that he is a model for his fellow citizens and must respect authority, by obeying the orders received and making the required reports of what he has observed. (unofficial translation)

The complainant in the case at hand gravely neglected his duty. The employer would have been justified in punishing him very severely, because the employee neglected his duty and violated the provisions of the disciplinary code governing him. As CN counsel argued, the offence was all the more serious in that it tarnished the employerís image. The complainantís acts in this case could not help but bring discredit to the CN Police, more specifically in the Vancouver region. Finally, the arbitrator agrees with the comments of arbitrator Frumkin, in the award Bell Canada and Communication 85T-293, that when the relation of confidence is at stake, the rule of progressive discipline does not apply:

Overall, then the tribunal cannot fault the company for adopting an attitude of distrust toward the complainant in this case. It was unaware of the complainantís grounds for his actions, it was not ready to accept his explanations fully, and apparently harboured serious suspicions about the employee. The complainant in fact entirely obliterated the confidence that the company was entitled to place in him, and consequently it seems, made continued employment with the company untenable. The company considers that it would be taking an excessive risk by keeping the complainant in his employ, a point of view that is certainly justified in the circumstances. In the tribunalís opinion, it would be presumptuous for it to oblige the company to assume such a risk in this case.

Union counsel invoked three reasons to justify the tribunalís intervention and reduction of the sanction assessed to the complainant. First, he maintained that progressive discipline was appropriate in this case. The tribunal cannot subscribe to this argument. The complainantís conduct was extremely serious, in fact, and undermined the trust that the employer had rightly placed in him. When the relationship of trust is at stake, progressive discipline is not appropriate. If an employee is guilty of misconduct such that it could be said that this was a dishonest action, but without justifiably concluding that it is no longer possible to have trust in him, then progressive discipline may be assessed. If the relationship of trust has been irremediably severed, however, there are no more grounds for maintaining that relationship. (unofficial translation)

But did the complainantís extremely unfortunate actions on the night of May 28 actually sever the relationship of trust, considering all the circumstances? The arbitrator cannot ignore some of the arguments by Association counsel, primarily those concerning the status of a CN constable. A CN police officer has the status of a peace officer, it is true, but his role is more limited than that of a constable with a municipal, provincial or federal force. In fact, his duties essentially consist in guaranteeing the safety and security of persons and goods on the employerís property. He is not invested with the mandate to prevent and fight all crime and, more specifically, prostitution. In many of the awards cited by CN counsel, the arbitrators dealt with cases of police officers who had acted dishonestly or fraudulently, or who had violated other provisions of the Criminal Code. In the case of Ville de Chateauguav and Fraternité des policiers- pompiers de Chateauguay Inc., 83T-967, arbitrator Pierre N. Dufresne, the police officer had defrauded his employer. In Fraternité des policiers de Greenfield Park, referred to above, the employee had falsified a report. In Fraternité des policiers de la C.U.M. and C.U.M, 85T-173, arbitrator Andre Rousseau, the employee had used excessive force. In Ville de Port-Cartier and Fraternité des Policiers et Pompiers de Port-Cartier, 85T-566, arbitrator Marcel Morin, the police officer had threatened colleagues and concealed facts from the Police Commission. In the unpublished award dated May 5, 1986, C.U.M, and Fraternité des Policiers de la C.U.M., arbitrator Marc Gravel, the officer had asked a prostitute into his car to obtain her services for money. In this award, arbitrator Gravel justified his rejection of the grievance contesting the officerís dismissal as follows:

Police officers are responsible for controlling prostitution, particularly in the streets, and so cannot themselves be clients of prostitutes. The discredit this brings to the prestige and effectiveness of the Force is obvious. (unofficial translation)

But in the case at hand, the complainant was not in fact mandated to combat prostitution. The actions of which he is accused, although reprehensible entirely, did not however conflict with the essential nature of his duties. It would be quite different had he committed a theft or another dishonest action to the detriment of CN or one of its customers, for example. But that was not the case. The arbitrator fully understands that the management of the department, and Superintendent Saunders in particular, were deeply shocked by the constableís misconduct. Nevertheless, the arbitrator agrees with Union counsel that other solutions could have been considered, in view of all the mitigating factors. The complainant had a clean disciplinary record and 25 yearsí seniority. The undersigned concurs with his colleagues who have decided that in cases where the relationship of trust is irremediably severed, the employer is not obliged to comply with the rule of progressive discipline and consideration for mitigating circumstances. In this case. however, as explained above, the offence committed was not of a nature to undermine the trust that could be placed in the complainant in the execution of his duties. Moreover, he immediately expressed his remorse, and never tried to conceal his actions, either from the two Vancouver Police Detectives, the two Lieutenants or, finally, from Superintendent Saunders. The arbitrator believes, lastly, that the employer, if it did not wish to take the complainant back into its employ, could have considered some arrangement under the early retirement plan agreed on with the Association several days after his dismissal.

In view of all the evidence and arguments in this case, considering the serious nature of the offence committed, on the one hand, and the nature of the complainantís action, his mandate, his long service and clean disciplinary record, his spontaneous confession, his remorse and, finally, his proximity to retirement, on the other hand, the arbitrator decides to intervene and allow the grievance in part, to annul the dismissal and replace it with suspension without pay, to be concluded within three weeks of this award. The arbitrator orders the employer to reinstate the complainant in his position on Monday, September 14, 1992. The arbitrator retains jurisdiction over any disputes that may arise in the application of this award.

BERTHIERVILLE, AUGUST 17, 1992

(signed) ME. ANDRE- SYLVESTRE

Sole arbitrator