Numéro de sentence arbitrale 90-046

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Award Date:	1990-02-23
Arbitre:	Picher, M. Voir les prix par Picher, M.
Municipalité:	Thunder Bay Voir les prix а partir de Thunder Bay
Région:	North West Voir les prix а partir de North West
Classifications:	Indemnification, Discrimination
Plaignant:	Sgt. Brian Sundell
Comparutions:	B. Chercover, M. Hart and others, pour l'Association R.C. Edwards and P.N. Ward, pour l'employeur
Longueur:	74 pp
Référence conventions collective	Art. 14.02; 15.03
Référence législative	Police Act (Code of Offences); ss. 423 (1) (d) & 127(2) Criminal Code

Sommaire

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Indemnification   Criminal charges - Police sergeant charged with criminal conspiracy – Grievor and co-accused officers all acquitted - However grievor interfering with prosecution of bawdy houses by tipping off keepers in advance - Grievor’s actions not falling within gambit of “execution of his duty” as a police officer – Grievance allowed on other grounds.

Discrimination   Differential treatment of grievor in relation to co-accused officers - Indemnification claims of co-accused officers allowed in exchange for their resignations and withdrawal of grievances - No basis for refusing grievor’s claim on grounds that he retired. - Grievor neither more nor less culpable than co-accused officers - Grievance allowed.

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Réalités

In his grievance retired Sergeant B. Sundell claimed entitlement to indemnification of his legal expenses incurred in the course of defending himself against criminal charges of conspiring to obstruct justice by interfering with the execution of search warrants against bawdy houses in Thunder Bay.

The grievor and three other officers in the morality squad were all acquitted on the charges, because the jury was not convinced of the existence of a conspiracy among police officers, keepers of the houses, inmates and clients. Despite the acquittals, it was not disputed that the grievor and his co-accused officers had tipped off the brothels prior to police raids.

It seems that brothels had existed in Thunder Bay for many decades. The prevailing approach on the part of many in the community, including police officers, public officials and members of the judiciary, was described as one of tolerance or at least recognition of their longevity in the community.

Evidence was led establishing the degree of “closeness” between certain morality squad members, including the grievor, and bawdy houses. In particular, a pattern emerged of squad members tipping off house keepers prior to police raids. This practice was atypical, however, in the sense that the general ranks of the force were unaware of it.

In 1982 an informer made statements to an out-of-province police force about some Thunder Bay police officers being bribed by the owners of two bawdy houses. The Chief asked the O.P.P. to investigate. The investigation, conducted over a period of five to six months, involved wire taps and surveillance. No evidence of bribery was found; but both the investigation and testimony at the arbitration hearing revealed a “...degree of fraternization amounting to collusion and in some cases, a degree of corruption” (p. 19).

“Operation Teacup”, as the investigation became know, culminated in massive raids and the charging of the grievor and three other morality squad officers with conspiring to obstruct justice by interfering with the execution of search warrants, contrary to ss. 423 (1)(d) and 127 (2) of the Criminal Code. The grievor and his fellow accused were also charged with neglect of duty and discreditable conduct contrary to the Police Act. In 1986 all four were acquitted on the criminal charges. Proceedings under the Police Act had commenced before the criminal trials but were stayed; further Police Act proceedings were then obviated by the grievor’s retirement in 1985. Nor were the Police Act charges pursued in relation to the other three officers: the Board paid the officers’ legal bills in exchange for their resignations and the withdrawal of their grievances.

Argument

The Association argued that the grievor had acted “in the execution of his duty” as a police officer, as required in order to meet the test posed by art. 14.02 of the agreement (legal indemnification). The Association pointed to the long standing “laissez-faire” approach to bawdy houses which had been fostered by the force, and contended that the grievor had no reason to believe that he was required to adopt any other approach. Alternatively the grievor had been treated in a discriminatory fashion by the Board: the Board had made an arrangement with the other three officers to pay their legal expenses in return for the officers’ resignations.

The Board took the position that the grievor was not in the “execution of his duty” and was therefore not entitled to indemnification of his legal fees. On the issue of discrimination, the Board distinguished the grievor’s situation. Unlike the grievor, who had retired, the Board had been faced with the on-going employment status of the other three officers. Rather than incur further expense and public exposure in prosecuting the three officers under the Police Act, the Board had decided to minimize its losses and pay the officers’ legal bills in exchange for their resignations.

# de sentence arbirale

Reviewing the jurisprudence on legal indemnification clauses in Ontario, the Arbitrator discerned a “common thread” running through successful claims – namely, that the impugned conduct was invariably “directed towards achieving the ends of law enforcement” (p. 38). By contrast, the grievor’s conduct in tipping off brothels prior to police raids was “antithetical” to the ends of law enforcement. Thus he had not acted in the “execution of his duty.”

However, the Arbitrator accepted the Association’s argument on the discrimination issue. Given their conduct, none of the officers involved were entitled as of right to indemnification. Yet the Board had chosen to indemnify the other three. The grievor deserved no less, irrespective of his decision to retire. He was neither more nor less culpable than the other officers. Indemnification was a negotiated benefit, which must be administered fairly and equitably.

The Arbitrator ordered the Board to pay the grievor’s legal costs associated with defending the criminal conspiracy charge.

Grievance allowed.

Autorités cité

Waterloo Regional Board of Commissioners of Police and Waterloo Regional Police Association (unreported) July 23, 1983 (Weatherill)
Town of Wiarton and Wiarton Police Association (unreported) December 17, 1986 (Dempster) (2 awards)
Board of Commissioners of Police for the Regional Municipality of Durham and Durham Regional Police Association (unreported) November 9, 1983 (Swan)
Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Association (unreported) November 13, 1985 (P.C. Picher)
Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Association (unreported) January 12, 1987 (Swan). Award upheld on judicial review: Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Association (1988), 64 O.R. (2d) 250 (Ont. Div. Ct.)
Hamilton-Wentworth Regional Board of Commissioners of Police and Hamilton-Wentworth Police Association (unreported) March 21, 1989 (Langille)
Re Sudbury General Hospital and Ontario Nurses’ Assoc. (1984), 15 L.A.C. (3d) 40 (M.G. Picher)
Re Ottawa Civic Hospital and C.U.P.E., local 576 (1982), 6 L.A.C. (3d) 109 (McLaren)
Re Inglis Ltd. and U.S.W., local 4487 (1978), 17 L.A.C. (2d) 380 (Beck)
Re Kodak Canada Ltd. and International Chemical Workers’ Union, local 159 (1975), 10 L.A.C. (2d) 332 (Betcherman)
Re International Chemical Workers’ Union and Chemical Developments of Canada Ltd. (1968), 19 L.A.C. 302 (Weatherill)

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