BETWEEN:

(CN)

AND

(the "Union")

SOLE ARBITRATOR: Me. André Sylvestre

There appeared on behalf of the Company:

Me. Raynald Lecavalier – Counsel

And on behalf of the Association:

Me. Gine Castiglio – Association Counsel

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

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:

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

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

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

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:

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

At the same time, his superiors gave him the CN Police officers’ 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:

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

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 Department’s 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 complainant’s 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:

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 complainant’s 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 Saunders’ judgement, this penalty was the only one possible, in the circumstances, owing to the serious nature of the constable’s 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:

In the above document, Superintendent Saunders did not bother to consider the prostitute’s 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 complainant’s 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:

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 suspect’s 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 complainant’s 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 complainant’s 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:

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 woman’s 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:

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 complainant’s 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 woman’s 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 complainant’s 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:

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 complainant’s 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 superiors’ 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 lawyer’s 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 department’s 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.

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 employer’s property, trains and customers’ 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 victim’s 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 complainant’s 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 complainant’s 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 complainant’s 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 department’s 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.’s 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 complainant’s 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 complainant’s 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 O’Brien (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:

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:

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

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:

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:

When the offence was a moral one, arbitrators have upheld the dismissal, invoking the police officer’s 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 officers’ action tarnished the reputation of police forces. Despite the officers’ clean disciplinary records, the Commission decided:

CN counsel then stressed the importance of CN’s 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:

CN counsel argued that, in a case such as the one under discussion, the employee’s 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:

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.’s 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 company’s 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 employer’s 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 Department’s image with the Vancouver Police Department, it must remembered that the latter’s 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 arbitrator’s duty is precisely to evaluate the impact of the complainant’s actions. Here, the employer erred by failing to give sufficient weight to the complainant’s 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 years’ seniority, who had been found guilty of the theft of a skipping rope. On pages 12 and 13, he wrote:

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 employer’s 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:

After analyzing the evidence, the arbitrator wrote:

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:

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:

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:

Finally, a tribunal presided over by arbitrator G.R. Stewart also considered an employee’s 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:

Given the complainant’s 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:

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 employer’s image. The complainant’s 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:

But did the complainant’s 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 employer’s 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 officer’s dismissal as follows:

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 constable’s 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 years’ 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 complainant’s 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