AH631
ARBITRATION PURSUANT OT THE CANADA LABOUR CODE
BETWEEN
CANADIAN NATIONAL RAILWAY COMPANY
AND
CANADIAN NATIONAL RAILWAYS POLICE ASSOCIATION
Assessment of 35 demerits to the file of Constable Benoit Trudeau on March 4, 2012
ARBITRATOR: MICHEL G. PICHER
APPEARED
FOR THE COMPANY:
Denis Laurendeau, Labour Relations Manager, Montreal
Jacynthe Girard, Attorney, Montreal
Stephen Covey, Chief of Police
Pierre Bergeron, Inspector
Martin Blanchette, Expert, École nationale de police du Québec
FOR THE UNION:
Michel Derouet, Union Counsel
Guy Corriveau, Constable
Norman Parsons, Constable
Benoit Trudeau, Constable-Grievor
Hearing in Montreal on April 8, 2013
AWARD OF THE ARBITRATOR
This is a grievance regarding the assessment of 35 demerits to the file of Constable Benoit Trudeau of Montreal and his reassignment. The Company claims that Constable Trudeau had acted negligently in detaining three suspects on the night of March 4, 2012.
The employer’s statement reads as follows:
On March 4, 2012, Constable Trudeau proceeded alone to arrest three individuals suspected of stealing equipment belonging to the Company.
Following a review of the procedure used by Constable Trudeau on March 4, 2012, the Company decided to hold a formal investigation to allow him to provide his version of the facts against the allegations of negligence on March 4, 2012 during the arrest of three individuals.
The formal investigation was held on April 10, 2012, and it was concluded that Constable Trudeau had been negligent while carrying out the arrest procedure and 35 demerits were assessed to his disciplinary record for: “Professional negligence: by placing your life as well as that of the two defendants in danger; Professional negligence: arrest procedure did not comply with the Policy and Procedure Manual or the use of force model.”
The Association considers Constable Trudeau to have acted in good faith and that he was in control of the situation when he arrested the three individuals. Furthermore, the Association maintains the fact that nothing happened to Constable Trudeau or the three suspects following the inappropriate arrest procedure should have been considered a mitigating factor in the decision to assess the disciplinary measure. The Association considers the Company’s decision to assess 35 demerits to the disciplinary file of Constable Trudeau excessive and requests the withdrawal of the entire disciplinary measure.
The Company rejects the Association’s claims and maintains its position.
It should be added that there is an additional dimension to the disciplinary measures assessed to Constable Trudeau. In addition to the 35 demerits, his assignment was switched from Rivière des Prairies to Montreal to ensure closer supervision of his work. The fact that this assignment imposes a longer commute to work is not being disputed. The Union Counsel claims that it is a double penalty imposed unjustly for a single infraction.
The relevant facts of the grievance are not being disputed. On the night of March 4, 2012 Constable Trudeau was working alone. At around 11:20 p.m., he received a call advising him that there was a suspicious vehicle parked at the south entrance of Taschereau Yard, not far from his office. He therefore drove over in his patrol car. Near the yard entrance, on Norman Street, he did indeed see the vehicle in question, which was an SUV. He believed there were two individuals inside the SUV who, from all evidence, may have been involved in the theft of Company property or property belonging to Canadian Pacific, which was located on a neighbouring lot. He then radioed for help from the Montreal Police department.
After 10 minutes, as the Montreal Police had still not shown up yet, he decided to proceed to intercept the vehicle by himself. Constable Trudeau then got out from his patrol car and approached the suspicious vehicle. He told the driver to get out. After a pat-down of the individual, he placed the suspect in the back of his patrol car, which is protected by bars. He then returned to the suspects’ vehicle to carry out the same pat-down on the second individual. Once he completed the pat-down on the second individual and also locked him in the back of his patrol car, he returned to inspect the contents of the vehicle. That was when he noticed a third suspect in the back row seat of the vehicle. He proceeded to arrest and search the third suspect, whom he then placed in the back of his patrol car with the other two suspects. Once the three suspects were secured in the back of his patrol car, the Grievor cancelled his request for reinforcement from the Montreal Police department.
The constable then drove his vehicle to the CN Police office, on Hickmore Street, where he drove his patrol car into the garage and closed the door. He then took the three suspects out of the vehicle, one by one, leading them one at a time inside the office, where he put them in a lock-up room. Afterwards, Constable Trudeau offered a can of soda to the suspects and brought the SUV driver out of the cell. He then returned to his vehicle with this individual to pick up the suspects’ vehicle. The third suspect came back driving their vehicle while the constable drove his patrol car. It was agreed that during this trip the two other detainees stayed alone in the small detention room.
When he returned to the office, Constable Trudeau had the suspects’ vehicle to go backward into the garage, while he positioned himself behind the vehicle to direct the driver. He then ordered the driver to take out the reels of copper wire inside the back of the vehicle and to place them against the nearby wall.
After having put the third suspect in the cell with the other two suspects, the constable brought them out, one at a time, to his office where he proceeded to question and identify them, one after the other. Finally, he took them all out of the cell together and walked back to the garage with them. He then issued each suspect a ticket and released them, keeping the seized reels of copper wire in custody.
Most of what is described above was recorded by the cameras installed in the garage and in the police office hallways. After having viewed the video recordings and read the related documents, an expert witness of the employer gave his opinion on the procedure used by Constable Trudeau in his arrest of the three suspects. Martin Blanchette, who is a police officer and instructor at the École nationale de police du Québec, commented on what he saw as moments of hazard and negligence in the method used by Constable Trudeau in the arrest and detention of the three individuals.
First of all, the expert witness criticized the Grievor for having acted alone under the circumstances. According to him it is important to calculate the suspect to police officer ratio beforehand, which clearly was not in favour of Constable Trudeau in this case. Witness Blanchette insists that it would have been more reasonable to call for back-up from the outset. He also criticized the lack of distance between the suspect’s vehicle and the Grievor’s patrol car when the Constable took his first few steps.
Among what he qualifies as mistakes made by Constable Trudeau, he noted that Constable Trudeau did not remove a cellphone that was in the possession of one of the suspects, and that he did not handcuff them or place them in an actual cell, as he could have done at the Montreal Detention Centre. Blanchette also criticized the fact that the Grievor did not appear to have searched the suspects’ vehicle to make sure there were no weapons. According to Blanchette, Constable Trudeau was also negligent when he left the two detainees unsupervised when he left the site to retrieve the suspects’ vehicle.
The employer’s representative maintains that Mr. Blanchette’s criticism shows that the Grievor had indeed proceeded negligently and in a dangerous manner in detaining the three suspects. He further claims Constable Trudeau’s reassignment was carried out as an administrative measure, to ensure that he would be given better coaching by a supervisor. According to him, in light of the Grievor’s disciplinary file, the assessment of 35 points was justified.
The Union Counsel pleads that the Grievor did not in fact do anything to merit discipline. He maintains that the constable acted reasonably in dealing with a group of suspects who were docile and obeyed the Grievor’s orders at all times. He points out that this was not an arrest for criminal charges, but rather the detention of three individuals in order to properly identify them so as to issue a ticket and facilitate the charge for their possession of stolen property, which followed a few days later. He said that Constable Trudeau, who has 32 years of experience and who deals regularly with people who are found illegally trespassing on railway property, was entitled to exercise discretion based on his observations and not to impose forceful measures on the suspects, such as the use of handcuffs, which was not justified under the circumstances.
In support of his position the Union Counsel drew the Arbitrator’s attention to decisions by the Comité de déontologie policière (police ethics committee), including Commissaire v. Grondin, Hubert, Kistabish, C-2009 -3602-2 and Commissaire v. Patenaude and Côté, C-2007-3438-3.
After having thoroughly reviewed the file, I am not convinced that there is ground to impose such a severe sanction against Constable Trudeau. I agree with the Union’s position that the actions of the Grievor must be judged within the context of the facts he had to deal with. It is primarily up to Constable Trudeau to judge the danger that the three suspects presented. I believe it is important to note that he confronted them separately, got them out of their vehicle one at a time, and placed them in his patrol car. One after the other, they proved to be non-aggressive and cooperated fully with the constable who tried to identify them. The Grievor had never put himself in the presence of more than one suspect at a time, except at the end, when he clearly explained to them that he was issuing them a ticket and they would be released. I am not rejecting any of the principles described by Mr. Blanchette and contained in the Modèle national de l’emploi de la force (provincial model on the use of force) published by the École nationale de police du Québec. However it must be said that the same document acknowledges the measure of force must depend on the circumstances in the field. The text of the national model acknowledges that the mere presence of the constable and his communication may be adequate to control the situation. In my opinion, it was obviously the case here.
That being said, I must admit that however there were deficiencies in terms of caution and negligent actions by Constable Trudeau. Firstly, I find it difficult to understand how he could have left the two suspects alone in the small detention room, leave the building and drive off with the third suspect. No one, aside from him knew they were there. What would happen if there was a fire at the police office, if the suspects had fought or if an unforeseen event had compromised the Grievor’s ability to return to the office? The Grievor was responsible for ensuring the safety of his detainees. He failed this duty when he effectively abandoned them in detention without notifying anyone. In my opinion, this one fact made Constable Trudeau subject to discipline.
It is true that at several times the Grievor did not follow ideal practices, e.g., walking in front of a suspect rather than in back of him in the police station hallways, or positioning himself behind the suspects’ vehicle while one of them was backing up the vehicle into the station garage. But in my opinion such failure of best practices are not matters of serious negligence that justifies major discipline.
For these reasons, I have decided that the grievance must be allowed, in part. Considering the full cooperation given by the suspects, from start to finish, I do not believe that the Grievor was negligent in his decisions in regards to the force required under the circumstances or as to his decision to detain the suspects for identification without any back-up. However, for the above-stated reasons, I believe that his leaving the suspects in detention without supervision was negligent and deserves disciplinary sanction. Considering his previous record, I think 15 demerits would have been enough to convey to him the extent of his error.
However, I cannot allow without qualification the Union’s position as to the alleged double penalty imposed on the Grievor. I agree with the employer’s representative that the errors made by Constable Trudeau, as well as his only act of negligence, justified the employer reassigning the Grievor to a workplace where he would be better coached and supervised. However, since this transfer incurs a significant additional expense and commuting time, and could deprive him the privilege of assignment based on seniority and his acquired rights under Article 12 of the collective agreement, it clearly has a disciplinary aspect. Though I accept that the employer was entitled to impose the reassignment, it may not be imposed in perpetuity.
For these reasons, the grievance is allowed, in part. I order the disciplinary record of Constable Trudeau amended to record 15 demerits for the March 4, 2012 events instead of the 35 demerits. Furthermore, his reassignment shall not be for more than two years, after which time he may be reinstated to his former assignment.
I will keep abreast of this file to resolve any conflicts concerning the interpretation or execution of this ruling.
Dated at Ottawa, May 3, 2013.
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Michel G. Picher
Arbitrator