Award Number 99-017

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Award Date:	1999-09-27
Arbitrator:	Marcotte, W View awards by Marcotte, W
Municipality:	Metro Toronto View awards from Metro Toronto
Region:	Central View awards from Central
Classifications:	Evidence, Indemnification
Grievor:	J. Oosterhof
Appearances:	H. Black, Q.C. and others, for the Association M. Hines, D. Matzanke, Student-at-Law and others, for the Employer
Length of Award:	24 pp
Collective Agreements Cit.	Art. 23; Regulations 4.8.4, 4.8.5, 4.14.2
Statutory Cit.	Criminal Code s. 25

Summary

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Evidence   Credibility of witnesses – Grievor acquitted on charge of assault – Refusal to indemnify – Discrepancies between grievor’s testimony and videotape evidence – Grievor’s testimony that citizen spat upon him not credible – Reasonable decision not to indemnify – Grievance dismissed.

Indemnification   Criminal charges – Grievor acquitted of charge of assault – Board refusing to indemnify grievor based on its own investigation and videotape of incident – Not established citizen spat upon grievor as alleged – Alternatively grievor used excessive force by kneeing citizen and placing him in headlock – Abuse of powers as police officer – Grievor not entitled to indemnification of legal costs. – Grievance dismissed.

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Facts

The grievor sought indemnification of his legal costs (approximately $42,000) incurred in the course of defending himself against a charge of assault. The charge arose from an arrest made by the grievor and his partner, and their behaviour towards the arrested citizen in the sally port of 51 Division. The grievor was acquitted of the assault charge.

In the interim award in this matter [# 99-007; reported L.A.C.], the Arbitrator admitted the trial transcript, while declining to admit "similar fact" evidence.

Notwithstanding his acquittal, the Board refused to indemnify the grievor for his legal costs. The investigating D/Sgt viewed the videotape, the citizen's complaint (which contained no reference to the sally port incident) and other medical evidence, before determining that the grievor should be charged with assault.

Neither the grievor nor his partner filed an injury report or a force report.

The citizen did not testify at the grievor's criminal trial, but did testify at the arbitration hearing.

The videotape of the sally port incident revealed that the grievor kneed the citizen and then placed him in a headlock. The grievor testified that the citizen had spat upon him, and explained that his actions were reactive and defensive.

Article 23.01 of the collective agreement provided for indemnification of legal costs in connection with criminal charges, where the member was not found guilty, because of acts done in the attempted good faith performance of duties as a police officer. However, Art. 23.02 provided that the Board may refuse payment where the officer's actions amounted to a gross dereliction of duty or "deliberate abuse of his/her powers as a police officer."

Argument

The Board argued that the evidence established that the citizen did not spit upon the grievor. Further, even if he had, the grievor used excessive force. There were other techniques available to protect himself. In using excessive force, the grievor deliberately abused his powers as a police officer.

Award #

The grievor's acquittal was prima facie evidence of good faith performance of duties. The onus was on the Board to prove, on a balance of probabilities, that the grievor wasn't entitled to indemnification.

The Board met that onus.

The videotape neither corroborated the grievor's allegation that the citizen spat upon him, nor the citizen's denial that he spat upon the grievor. However, the citizen's testimony was consistent with what was observed on the video, and this bolstered the credibility of his version of events. By contrast, there were a number of "significant" discrepancies between the grievor's version of events and the videotape. There were also discrepancies within the grievor's evidence. In short, the Arbitrator found the grievor's statement that the citizen spat upon him to be not credible. The grievor had thus abused his powers as a police officer.

Alternatively, even if the citizen did spit upon the grievor, the grievor had used excessive force, as measured against the standards applicable in these cases. The videotape showed the grievor kneeing the citizen and placing him in a headlock with "deliberateness and forcefulness." On this finding - use of excessive force - it was likewise not unreasonable for the Board to determine that the grievor abused his powers as a police officer, and to deny him indemnification.

Grievance dismissed.

Authorities Cited

* Re Metropolitan Toronto Board of Commissioners of Police (Shime) cit. incomplete
* Re Metropolitan Toronto Police Services Board and Metropolitan Toronto Police Association (Aug. 12, 1995) unreported (Brandt)
* Martin's Criminal Code, 1999 cc/68
* Re S/Sgt. Allen Magda and Const. Wm. Sheppard and The Board of Inquiry (Oct. 23, 1992) unreported (Ont. Ct.J.)
* Re Peterborough Community Police Service Discipline Hearing (March 20, 1998) unreported (R.J. Fitches, Sept., O.P.P. Adjudicator)
* Re Metropolitan Toronto Police Services Board and Metropolitan Toronto Police Association (May 27, 1998) unreported (Jackson)
* Re City of Barrie Police Services Board and Barrie Police Association (July 26, 1994) unreported (Jackson)
* Re Walbar Canada and U.S.W.A., Local 9236 (1997), 68 L.A.C. (4th) 149 (Marcotte)


** Award 99-017 selected for publication in Labour Arbitration Cases.

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