IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
CANADIAN NATIONAL RAILWAY POLICE ASSOCIATION
RE: GRIEVANCE OF SPECIAL AGENT T. STOREY
Sole Arbitrator: Michel G. Picher
Appearing For The Association:
P. Davidson – Counsel, Ottawa
Frank Morgan – President, CNRPA
S/A Terry G. Storey – Grievor
R. A. Bowden – System Federation General Chairman (BMWE), Ottawa
Appearing For The Company:
R. K. MacDougall – Counsel, Montreal
P. M. Duggan – Inspector, CN Police
A hearing in this matter was held in Toronto on Monday, January 3, 2000.
This arbitration concerns a grievance against the assessment of ten demerits for the careless discharge of a police officer’s firearm. The grievor, Special Agent T. Storey, is a police constable who has been in the service of the CN Police for some eighteen years. It is common ground that he has never been disciplined prior to the incident at hand. The nature of the incident and the issues to be resolved are reflected in the ex parte statement of fact filed by the Association, which reads as follows:
ASSOCIATION’S STATEMENT OF FACT:
The grievor, Mr. Terry Storey, has been employed with Canadian National Railway Police Service since February 1982 and presently holds the position of Special Agent. Mr. Storey has an exemplary service record with the CN Police Service. On January 24, 1999 he was so employed working the 1100-2100 shift in the town of Oakville, Ontario. On January 24, prior to commencing his patrol officer Storey, as he frequently did over the course of his police career, dry fired his service revolver in the confines of the CN Police office so that he could maintain proficiency in the handling of the service revolver. The dry firing of your revolver was at the time a departmentally recognized, authorized and recommended means of maintaining familiarity and skill with the service revolver. During the course of this dry firing exercise there was an accidental discharge of officer Storey’s revolver. The company assessed 10 demerits for this unfortunate incident and the association contested the discipline on the grounds that it is punitive and not corrective.
The Association agrees that: (1) That an accidental discharge of the revolver occurred. (2) That the discharge resulted from officer Storey not double checking the revolver a second time ensuring that the cylinder was empty. (3) A projectile from the revolver struck a wooden cabinet in the office causing minimal damage to the wooden cabinet door and a metal door of the closed locker contained inside the wooden cabinet. (4) That officer Storey did notify his immediate supervisor of the incident by telephone. (5.) Officer Storey admitted and took full responsibility for the incident.
The Association disagrees with the Company on the following: (1) That officer Storey in the accidental discharge of his revolver endangered his safety or that of any other person. (2) That Officer Storey could have been criminally charged for this incident. (3) That the idea of discontinuing the practice of dry firing” was initiated by CN Police management, when in fact it was officer Storey who suggested same. (4) That the discipline assessed was not corrective in nature but punitive.
The Union requests that: (1) the discipline of 10 demerits be removed from officer Storey’s personal file and that a corrective interview be applied in relation to this matter.
The facts, as found through the undisputed evidence tendered at the arbitration hearing, are as follows. On Sunday, January 24, 1999 Special Agent Storey was assigned to work alone at the Company’s Oakville facility, commencing at 13:00 hours. By his own account, which the Arbitrator accepts, Special Agent Storey commenced his tour of duty alone in the CN police office, located in the Oakville facility. The office is a relatively small concrete block enclosure with a window giving onto an adjacent parking lot. At the beginning of his shift Special Agent Storey decided to perform practice exercises with both his police baton and his service revolver, described as a 357 magnum which utilizes 38 mm hollow point rounds.
Upon completing his baton exercises, Special Agent Storey proceeded to practice with his revolver by dry firing. Dry firing involves practice firing without ammunition, whereby the police constable aims his or her handgun at a chosen target and squeezes the trigger in simulation of actual shooting. Special Agent Storey relates that he chose as his dry firing target one of two round knob handles on the doors of a wooden cabinet located across the room. The wooden doors are a veneer covering for the metal doors of the locker located immediately behind them. According to Special Agent Storey, he had been attempting to master a particular firing technique explained to him by another CN police constable generally recognized as a proficient sharp-shooter. According to his testimony the routine in dry firing involves taking aim, steadying the revolver and squeezing the trigger twice in succession. The gun is then lowered, raised and aimed again, and the process repeated. Special Agent Storey relates that upon completing his dry firing exercise he proceeded to load his revolver, following his usual practice of placing five rounds in the cylinder, leaving the first chamber empty. This, he explains, is by way of precaution in the event that his firearm should ever be taken from him in the course of a struggle, and perhaps used against him by an assailant.
Special Agent Storey then proceed to perform other work in the office. According to his account, while he was in the course of pursuing his duties, which apparently involved paperwork to be completed in the office, he experienced a flash of realization as to the technique for accurate firing related to him by his sharp-shooter colleague. He relates that he then picked up his gun and took aim at the locker doorknob with the intention of dry firing to test what he believed to be his new understanding of the necessary technique. He squeezed the trigger twice, with the second squeeze resulting in the discharge of a bullet into the locker door. The discharge produced blue smoke and a loud report, which Special Agent Storey says immediately affected his hearing. The discharged round pierced the wooden door of the cabinet, and dented, but did not pass through, the interior metallic door. It appears that the shot was not overheard by anyone else, and indeed there were only one or two other individuals in the entire facility on the Sunday afternoon in question.
Special Agent Storey reported the incident to his supervisor, CN Police Inspector P.M. Duggan. He did so by telephone, reaching Inspector Duggan at his home at 14:58 hours on Sunday afternoon. It is common ground, however, that prior to calling Inspector Duggan Special Agent Storey made two telephone calls to his Association president, Mr. Frank Morgan.
Upon investigating the incident, Inspector Duggan filed a report with CN Chief of Police J. Dalzell. His report recommended that the Company proceed by way of an informal investigation. Under the terms of the collective agreement that option is more expeditious, and allows the awarding of discipline to a maximum of fifteen demerits. In explaining that decision Inspector Duggan’s report reads, in part, as follows:
Although the discharge of the service revolver is one of the more serious incidents that a CN Police Officer can get involved in, I believe that there are several factors that must be considered in this case.
1. S\A Storey has taken full responsibility for his careless actions.
2. S\A Storey was engaging in an activity which was sanctioned by the Police Service.
3. S\A Storey is normally a very dedicated and conscientious employee.
4. System policy states that discipline is to be correction oriented.
The Company ultimately decided to assess ten demerits against Special Agent Storey. The instant grievance ensued, as the Association’s position is that the more appropriate measure of discipline would have been a reprimand in the form of a corrective interview.
To support its position, the Association’s president canvassed a number of police forces in Canada to determine the normal measure of discipline assessed against police officers for the accidental discharge of their firearms. Mr. Morgan’s research reveals that the accidental discharge of a police officer’s sidearm, while obviously not a common thing, is not unknown. While the reports received by Mr. Morgan are obviously in the nature of hearsay, they are nevertheless useful as a general reflection of the nature of discipline associated with infractions involving the careless use of a firearm.
Mr. Daryl Tottenham, president of the BC Federation of Police recounts, in a letter dated December 22, 1999, that a number of such incidents occurred to his knowledge among police forces in British Columbia. Most of the incidents involved discharges in locker room areas, and related to adjustments to new 9 ml or 40 calibre Glock sidearms. He concludes as follows:
When these incidents were investigated, it was found in all instances there was no malicious intent and was merely an accident. The penalties assessed were in the form of a written reprimand, which is one of our lowest form of penalty. The rationale for this was simple; the incident was quite traumatic for the members involved and rather than focus on punishing the member, we opted or support and training. As a result of these incidents, there was a higher level of awareness and care taken, as well as better unloading stations in more common office areas.
The most serious incident involved a punishment of a one-day suspension, which the member was allowed to take out of his bank. The only justification for a higher penalty would have to involve a scenario where there was some degree of intent or gross negligence in the use of a firearm.
Mr. Troy Hagan, president of the Regina Police Association relates that the accidental discharge of a firearm while a constable was cleaning his service revolver resulted in an official written reprimand. Mr. Robert R. Baltin, executive director of the Peel Regional Police Association advises in a letter dated December 23, 1999 that in his experience verbal or written reprimands have resulted from the accidental discharge of police weapons, including at least one dry fire discharge incident.
Mr. David Griffin, executive officer of the Canadian Police Association writes as follows, in a letter dated December 23, 1999:
During the past twelve years I have been aware of numerous incidents involving the accidental discharge of a police weapon, most involving property damage and at least three incidents involving personal injury to the subject officers. In most of these incidents the employers did not respond with disciplinary measures, as counselling or remedial training were sufficient to deter repeat behaviour. The circumstances of the incidents were often sufficient to instil the need to take greater care in the handling of firearms. It has been my experience that in the exceptional cases that required a disciplinary response, the penalty against an officer was generally a reprimand or the forfeiture of a day or two in leave.
Additionally, a more complete report is provided by Mr. John Peterson, chair of the Ottawa-Carleton Regional Police Association. According to his account, the introduction of the Glock pistol occasioned “an inordinate number of accidental/negligent discharges”, which prompted a tightening of disciplinary measures, which apparently had previously had been limited to counselling. According to his account there were six incidents of accidental discharges, two of which resulted in remedial training or counselling, three of which involved suspensions ranging from one to two days and one of which involved no discipline. Further reports from local police associations in Saskatoon, Prince Albert and Winnipeg relate that accidental discharge incidents within those forces have consistently resulted in the assessment of a verbal or written reprimand and/or corrective instruction.
There is little in the way of reported jurisprudence involving the accidental discharge of a firearm by a police officer. Among the authorities that were cited, the Association brought to the Arbitrator’s attention a decision of the Ontario Workers’ Compensation Appeals Tribunal, in which the names of the parties are omitted (Decision No. 754/96  O.W.C.A.T.D. No. 1556). That award relates the claim of a laid off police officer for workers’ compensation benefits for stress. The decision of the Tribunal, which allowed the appeal, relates that the claimant was a constable of the Ontario Provincial Police force, stationed in a small detachment in north-eastern Ontario. In part, the decision relates “the worker was counselled by the Force for the accidental discharge of his revolver at work in June 1990.” Not surprisingly, there is little or no analysis of that incident, which was tangential to the claim, which involved allegations of the intentional infliction of stress by incidents as grave as alleged sexual assault upon his spouse by a supervisor, as well as systematic workplace harassment of the claimant.
Additionally, counsel for the Association tabled before the Arbitrator a decision of the Ontario Civilian Commission of Police Services, dated March 27, 1984, a disciplinary decision involving Constable John V. Brodie of the Chatham Police Force. The decision concerned an appeal of conviction registered against the constable for the careless discharge of his firearm, by accident, in a toilet stall. Although the tribunal found that what was involved was not a wilful act, but rather an accident, it was nevertheless satisfied that the constable had violated the regulation of the municipal force which requires “utmost care in handling firearms”. The commission dismissed the appeal, upholding the three day suspension of Constable Brodie. Unfortunately the copy of the decision provided to the Arbitrator gives no indication of the reporting publication.
On the strength of the authorities presented through the letters obtained by Mr. Morgan as well as the WCAT and Ontario Civilian Commission of Police Services decisions, counsel for the Association submits that the preponderant level of discipline for the accidental discharge of a firearm by a police officer is in the nature of a written or verbal reprimand or counselling. He argues that the assessment of a higher level of discipline, for example a suspension, is exceptional, and more frequently associated with aggravated circumstances, such as the concerted effort by the Ottawa-Carleton police force to bring home the need for special care in the handling of newly issued Glock pistols. Counsel submits that the experience of other forces, as gleaned in the research of Mr. Morgan, demonstrates that the standard disciplinary response for a first offence involving the inadvertent or accidental discharge of a firearm by a police constable is at the lowest level of discipline, and that adequate rehabilitation has been viewed as generally achieved by subjecting the offending officer to a written or verbal reprimand, counselling or retraining.
Counsel submits that the grievor has been honest and forthcoming with respect to the incident in question, and that his eighteen years of unblemished service justify a reduction of penalty to the level of a written reprimand or counselling in the safe use of his firearm. In the Association’s submission the assessment of ten demerits, a measure of discipline it views as inconsistent with the general trend of discipline within the profession, is excessive and should be reduced by the Arbitrator.
Counsel for the Company maintains that the employer did take all mitigating factors into account by assessing ten demerits against the grievor. He submits that that is a relatively light measure of discipline within the Brown system, which contemplates the discharge of an employee upon the accumulation of sixty demerits, and allows for the reduction of demerits for periods of discipline free service. Counsel for the Company also questions certain aspects of the facts, noting that the grievor failed to advise Inspector Duggan of the incident for some three hours, during which time he had at least two telephone conversations with his Police Association president concerning what had occurred. Counsel also stresses that the incident was not as benign as the Association would have it, arguing that some genuine danger might have resulted by ricochet, given that the dry firing target was an irregular shaped metal door knob in close proximity to a window. Counsel for the Company finally submits that limited weight should be given to the letters from other police associations gathered by Mr. Morgan, stressing that those incidents arise in circumstances where a different disciplinary system is applied, and in which the options of the employer are generally limited to reprimand, suspension or discharge, depending on the gravity of the incident. He submits that the Brown system of demerits allows for greater flexibility, and that the Company’s decision to assess ten demerits against Special Agent Storey was fair in all the circumstances, including consideration of his prior record and service, and that it should not be disturbed.
I turn to consider the merits of the parties’ submissions. At the outset it should be stressed that there is no issue before me as to the general quality of Special Agent Storey as a CN police officer, his personal integrity or the exemplary nature of his previous discipline record over eighteen years of service. The sole issue is whether the facts of the incident under review justify the assessment of ten demerits, or whether some lesser measure of discipline is appropriate in the circumstances.
In approaching the facts I must agree with counsel for the Company who notes that the full and detailed account of the incident, as related by Special Agent Storey, did not in fact emerge until the arbitration hearing. His verbal report to Inspector Duggan at the time of the incident did not, in fact, elaborate that he had completed the exercise of dry firing with an empty revolver, and that the accidental discharge took place only after he had loaded his revolver for his tour of duty and had proceeded to perform other work. Based on Special Agent Storey’s first account of the incident to his supervisor, it would not have been clear to the Company whether the error committed by the special agent might not in fact have involved the improper unloading and storage of his sidearm after its last previous use, perhaps with a single bullet left in the cylinder. That might arguably involve a lesser degree of inadvertence than the facts of the actual incident, which disclose that Special Agent Storey picked up a revolver which he had recently loaded, and proceeded to resume dry firing. While either possibility would obviously involve inadvertence, it is at least arguable that the actual scenario of using a freshly loaded revolver for dry firing can fairly be characterized as a more serious degree of carelessness than the possible prior faulty unloading and storage of the weapon.
Having closely reviewed the reports obtained from other police associations, and the two tribunal decisions cited above, the Arbitrator has some difficulty sharing the perception of the Association with respect to the meaning to be ascribed to the discipline applied in other police forces. I must agree with counsel for the Company that the nature of discipline assessed in the context of the municipal and provincial police forces examined can only be properly understood by appreciating that they do not operate within the Brown system of progressive discipline. In all of the examples cited, the police forces in question were generally limited to three disciplinary options: reprimand or counselling, suspension or discharge. In that context it is understandable that an incident involving a first offence by a police constable with an otherwise good disciplinary record would result in the avoidance of a loss of work and income to that individual by the imposing of a suspension, with a reprimand or counselling being preferred as a disciplinary response. It is not surprising that in those cases an enlightened employer might seek to avoid the harsher outcome of a loss of income to the employee concerned.
Under the Brown system, however, that concern does not arise. One of the significant features of the Brown system is that it allows an employer to impose discipline progressively, and cumulatively, by the assessment of demerits in a way that communicates to an employee the seriousness of the incident, or of successive incidents of the same or a different type, without inflicting upon the employee the financial hardship of a suspension from work. Although suspensions are sometimes resorted to under the Brown system, they generally are limited to extremely serious infractions or as a last chance alternative when the normal accumulation of demerits would otherwise result in discharge. Most significantly, under the Brown system it is not uncommon to impose demerits upon an employee for a first infraction, even where the individual has never before been disciplined. Occasionally reprimands and counselling are resorted within the Brown system. However, the assessment of demerits, generally in the range of five, ten or fifteen, is commonly, if not preponderantly, resorted to in a first infraction of some seriousness.
The Association’s reliance on the examples from the municipal and provincial forces in which the most frequent disciplinary response to the accidental discharge of a firearm is a reprimand can only be fairly weighed by asking whether, if the Brown system had been available, the assessment of demerits might not indeed have been used by those forces, at least in some cases. Additionally, in considering the general question of the appropriate measure of disciplinary response, it is not insignificant that in a substantial number of cases, some of which do not involve deliberate recklessness on the part of the officer, the accidental discharge of a firearm has in fact resulted in the suspension of the individual concerned.
Like any employee, Special Agent Storey deserves to have his disciplinary penalty assessed on an individual basis, with due regard to the facts of the incident and all mitigating factors, including the length and quality of his prior service. In the Arbitrator’s view, when all of those considerations are properly applied, the assessment of ten demerits by the Company does not appear excessive. The seriousness of the grievor’s careless act cannot be understated. Indeed, it appears that it has resulted in the Company suspending its previous policy of allowing its constables to engage in dry firing. It is fortunate that the incident occurred on a Sunday, where few, if any, other employees or supervisors were nearby. Nevertheless, the careless discharge of a deadly weapon in any circumstance is a matter of grave concern. It is obviously of no less concern where, as candidly disclosed by Special Agent Storey, the discharge results from an attempt to dry fire a revolver which he had himself just loaded.
In all of the circumstances I am satisfied that the assessment of ten demerits falls within the appropriate range of discipline, and that the Company’s decision in that regard should not be interfered with by the Arbitrator. The grievance must therefore be dismissed.
Dated at Toronto, January 14, 2000
(signed) MICHEL G. PICHER